Department of Corrections v Narayan
[2022] NZHC 2767
•26 October 2022
NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000127
[2022] NZHC 2767
UNDER Section 107F of the Parole Act 2002 IN THE MATTER
of an application for an extended supervision order
BETWEEN
DEPARTMENT OF CORRECTIONS
Applicant
AND
SUMIT SHAYAMAL NARAYAN
Respondent
Hearing: 4 August 2022 Appearances:
B D Tantrum and E Palsenbarg for Applicant J Wickliffe and M Jenkins for Respondent
Judgment:
26 October 2022
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 26 October 2022 at 12pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
DEPARTMENT OF CORRECTIONS v NARAYAN [2022] NZHC 2767 [26 October 2022]
Introduction
[1] The Chief Executive of the Department of Corrections (the applicant) applies pursuant to s 107F of the Parole Act 2002 (the Act) for an extended supervision order (ESO) for a period of 10 years together with an intensive monitoring condition to be imposed on Mr Sumit Narayan (the respondent). The applicant also applies for an order requiring the Parole Board to impose an intensive monitoring condition on the respondent.1 The applicant says that having regard to his history and unmet treatment needs, the respondent is assessed as posing a high risk of sexual offending and requires careful monitoring and supervision to address and mitigate that risk.
[2] The respondent opposes the application but says should the Court consider an ESO is required, it should only be for a period of two to three years, and that an intensive monitoring condition is not necessary in order to protect the public.
Background
[3] The respondent (now aged 44) was originally sentenced to preventive detention on 7 November 2001 for offending committed in 2000. However the Court of Appeal quashed that original sentence and substituted a sentence of 15 years’ imprisonment on 22 April 2002. On 28 February 2014 while still serving the sentence for his 2000 offending, the respondent having been found guilty of previous sexual offending committed in 1997 was further sentenced to a cumulative term of seven years’ imprisonment.
[4] Having served the sentence imposed for his 1997 offending the respondent was released from prison on 11 May 2022. His release conditions will expire on 13 November 2022. This Court made an interim supervision order with an intensive monitoring condition on 30 June 2022.2
[5] The respondent satisfies the required criteria for the making of an ESO. He is an eligible offender within the meaning of s 107C of the Act by reason of:
1 Parole Act 2002, s 107IAC.
2 Chief Executive of the Department of Corrections v Narayan [2022] NZHC 1535.
(a)Being sentenced by the Court of Appeal on 22 April 2002 to a term of 15 years’ imprisonment after previously having been found guilty of the following offences (the 2000 offending):
(i)sexual violation by unlawful sexual connection (x 4);
(ii)attempted unlawful sexual connection;
(iii)aggravated robbery (x 2); and
(iv)unlawful possession of a restricted weapon.
(b)Being sentenced on 28 February 2014, while still serving the sentence imposed for the 2000 offending, to a cumulative term of seven years’ imprisonment having been found guilty of the following offending (the 1997 offending);
(i)sexual violation by unlawful sexual connection (x 4);
(ii)attempted sexual violation by unlawful sexual connection;
(iii)indecent assault; and
(iv)aggravated robbery (x 2).
(c)And at the time of the filing of this application on 28 April 2022, he had not ceased to be subject to release conditions which will expire on 13 November 2022.
[6] The offences of sexual violation, attempted sexual violation and indecent assault are relevant sexual offences, and the offence of aggravated robbery is a relevant violent offence within the provisions of s 107B(2) and (2A) of the Act. The respondent having been sentenced to imprisonment for the relevant sexual and violent offences and who remained subject to the sentence of imprisonment at the time when the application for the ESO was made on 28 April 2022 and who notwithstanding his
release from prison on 11 May 2022 continues to be subject to release conditions until 13 November 2022 is an eligible offender pursuant to s 107C and the application satisfies s 107F(1)(a) of the Act.
[7]Section 107I of the Act provides:
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.
[8]The ESO application is made on the grounds that:
(a)the respondent has or has had a pervasive pattern of serious sexual offending;
(b)there is a high risk that the respondent will in the future commit a relevant sexual offence; and
(c)having regard to the high level and likely duration of the risk of the respondent committing a future relevant sexual offence and the seriousness of the harm he might cause, a period of 10 years is the minimum period required for the purposes of the safety of the community.
[9] The issue of whether the Court is satisfied regarding the matters required to be addressed in the health assessors’ reports pursuant to s 107F(2A), involves an exercise of the Court’s judgement and is not an assessment related to burden or standard of proof.3 An offender’s risk must be assessed on an individualised basis rather than in accordance with actuarial and static generic measures of risk. In deciding whether an ESO should be made, once the Court is satisfied that the offender is an “eligible offender” under the Act, it must then follow a three step process:4
(a)determine whether the offender has, or has had, a pervasive pattern of serious sexual or violent offending;5
(b)make specific findings as to whether the offender meets the qualifying criteria set out in s 107IAA; and
(c)where those criteria are met, make a determination about the risk of the offender committing a relevant sexual or violent offence.6
[10] Having determined by reference to those three steps whether it is satisfied that an ESO should be made the Court must then consider the appropriate term of the order
3 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [71]–[75].
4 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].
5 Section 107I(2)(a).
6 Section 107I(2)(b).
having regard to the factors prescribed by s 107I(5). The term of the order must be the minimum period required for the purposes of the safety of the community having regard to the level of risk posed by the offender, the seriousness of the harm that might be caused to victims, and the likely duration of the risk.
[11] The Court may only determine that there is a high risk that an eligible offender will commit a relevant sexual offence if satisfied that the offender:7
(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.
[12] The question of whether an ESO should be made is a matter of judicial judgement informed by the totality of the evidence before the Court. It is for the Court to make its own assessment. While the Court will in most cases receive considerable assistance from the observations and opinions expressed by the health assessors, the Court is responsible for making its own assessment and determination. In Barr v The Chief Executive of the Department of Corrections the Court of Appeal explained:8
[32] We wish to make it clear, however, that first instance Judges need not accept it as necessary, or right, to rubber stamp opinions of health assessors advanced by the Department of Corrections in ESO applications … What is required is a careful assessment of all the historical and current factors, along with expert opinions of others, bearing in mind that an ESO can have
7 Section 107IAA(1).
8 Barr v The Chief Executive of the Department of Corrections CA60/06, 20 November 2006.
substantial ongoing impact on an offender who has already completed the sentence imposed by the Court for the offending. The risk of re-offending has to be such that cannot properly be ignored when viewed against the gravity of likely re-offending.
[13] In deciding whether to grant an application and make an ESO it is also relevant to note that the Court of Appeal in Chisnall v Attorney-General made a declaration of inconsistency stating that:9
Part 1A of the Parole Act 2002 is inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990, and that inconsistency has not been justified under s 5 of that Act.
[14] Subsequently in R (CA586/2021) v Chief Executive of the Department of Corrections, the Court of Appeal said:10
[53] We accept the submission of R that consequent upon Chisnall, the continuation of the ESO needs to be clearly justified. Whilst that has always been the case, the declarations of inconsistency made by the Court emphasise the need for careful scrutiny. In this regard we note Chisnall holds that s 26(2) of the NZBORA (the second penalty provision) is capable of being subject to a reasonable limit. “Strong justification” will, however, be required, and that accordingly is the lens through which we assess whether the Judge erred in confirming the order.
The respondent’s offending
[15] I now set out a brief summary of the respondent’s offending in 1997 and 2000 in which he committed a series of relevant sexual offences and for which he was sentenced to imprisonment.
The 1997 offending
[16] At the time of this offending on 27 December 1997 the respondent was 19 years old. His victim was a young sex worker who was in a car with a male client. The respondent went alongside the vehicle and used a stun gun to shoot and incapacitate the victim’s client. He then told the victim that he had a gun and to stay in the car. The respondent then ordered the client to get out of the car, take his pants off and lie face down on the ground. He then demanded and took the client’s wallet
9 Chisnall v Attorney-General [2022] NZCA 24, (2022) 13 HRNZ 107 at [3(a)].
10 R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 (footnotes omitted).
and the victim’s bag. He then ordered the victim to get out of the car and lie down on the ground next to her client, whereupon he threw the car keys away and told the client to go. He then took the victim to another car park. On the way there he made her lie on the ground and touched her pubic area. He then put a pair of shorts over her head and led her to his car, put her in the passenger seat and drove around with her for about five to 10 minutes before arriving at a secluded place and making her get out, lie on the ground, and take her clothes off. The victim still had the shorts over her head. The respondent then penetrated the victim’s anus and vagina with his finger and tried unsuccessfully to put his penis into her anus before making her suck his penis. He made her turn over and while using a condom inserted his penis into her anus causing the victim pain.
[17] The respondent was subsequently charged with this offending in 2011 as a result of DNA matching evidence.
[18] At his trial he was found guilty and was convicted of two charges of aggravated robbery, four charges of sexual violation, one charge of attempted sexual violation and one charge of indecent assault. When sentencing the respondent on 18 February 2014, Brewer J noted that he was at that time serving a sentence of 15 years’ imprisonment imposed in 2002 for offending committed after the offending he was being sentenced for.11 Justice Brewer sentenced the respondent to seven years’ imprisonment to be cumulative on the sentence he was currently serving, and he imposed a minimum period of imprisonment of four years. In the course of his sentencing remarks Brewer J made the following comments:
[11] What is particularly worrying in the pre-sentence report is that you are assessed to be at a high risk of further violent sexual offending. The report says you lack insight into your offending, you lack concern for your victims, you are impulsive, you have an interest in deviant sexual practices, and you have a possible personality disorder.
…
[29] Mr Narayan, having seen you give evidence at your trial, I fully understand the comments that have been made by the author of the pre- sentence report. I judge you to be a dangerous man. If I could, I would sentence you to preventive detention. But I cannot. You were too young at the time of the offending. Your offending was contributed to by a disturbing
11 R v Narayan [2014] NZHC 183 at [10].
sexual motivation. You lack remorse and empathy and you are at, as I have said, a high risk of re-offending even after 14 years in prison.
The 2000 offending
[19] The respondent subsequently committed a further series of sexual and violent offences against two female sex workers on the night of 11 November and early morning of 12 November 2000. He was 22 years old at the time. The first victim was invited by the respondent to get into his car on the pretext of him obtaining oral sex. Once she was in the car he held a knife to her throat and demanded money. Eventually he let her go.
[20] The second victim was also picked up and got into his car on the pretext of him obtaining oral sex. Once the victim was inside his car the respondent locked the doors to prevent her from leaving and demanded money. The respondent then drove to a carpark at the Auckland Zoo where the victim managed to get out of the car and attempted to escape. However the respondent chased and caught her and took her back to his car at knife point and threw her back into the car causing her some minor injuries. He then forced the victim to give him oral sex, and defecated on her face. Then he ordered her to insert her tongue into his anus, but when the victim managed to avoid doing that the respondent smeared his faeces over her face and mouth. He then ordered the victim to stand beside the car and bend over while he attempted to insert his penis into her anus. When he was unsuccessful he took the victim’s cigarette lighter and forced it into her anus causing her significant physical damage. He then inserted his penis into the victim’s anus.
[21] A subsequent police search of the respondent’s residence resulted in the location of a can of pepper spray and large quantities of hard core pornography on his computer including images of acts of the kind he had performed on his victim. At his trial he was found guilty of four charges of sexual violation by unlawful sexual connection and two charges of aggravated robbery. He pleaded guilty to a charge of having possession of a restricted weapon — the pepper spray.
[22] When sentencing the respondent to preventive detention on 7 November 2001, Glazebrook J described the offending as being of “the most serious possible kind”,
and that the evidence at trial and the reports before the Court showed that he had a complete lack of remorse or empathy for the pain and hurt he had caused the victim by being put through such degrading acts. Justice Glazebrook said:
[38] In my view in this case there are an unusual combination of risk factors (and Dr Tapsell considers risk factors should be viewed in combination). These risk factors have been identified by the psychiatrists, and I have discussed them in some detail above. It is these risk factors that have lead me to that conclusion that you do present a substantial risk of re- offending. In particular I have come to that view because of the nature of the crimes themselves and their link to the pornographic images on your computer downloaded the very afternoon of the crime. The fact that there is material on your computer which is, if anything, more disturbing than the defecation material which you acted out, coupled with Dr Wyness' view that sexual sadists continue until apprehended and that the acts can escalate, cause me particular concern. I note that there were three summaries of fact put before the Court which, although at a much lower level, can be seen as showing escalating violence, albeit not of a sexual nature, and I am aware that you might have some explanations in respect of at least one of those summaries of fact. The link with a personality disorder is even more disturbing (and in this regard I prefer Dr Wyness' evidence to the extent it differs from that of Dr Tapsell), although I note that Dr Tapsell also found disturbing the link of sexual sadism with the personality disorder. I have also taken into account your lack of remorse and empathy even for hypothetical victims. The elements of planning involved also cause concern as does your comment that you would have killed your victims, whatever the motive for making such a comment. I also take into account that there are no suitable rehabilitative programmes in prison and the fact that your denial and minimisation would make you unlikely to succeed in any programme in any event at this stage. There are also the demographic factors referred to by Dr Tapsell in particular that compound the risk of re-offending. In combination these factors mean that I am satisfied that there is a substantial risk of re-offending in your case in a sexual manner even taking into account that I must predict many years into the future.
[23] The respondent’s appeal against the sentence of preventive detention was allowed by the Court of Appeal on 22 April 2002, and a finite sentence of 15 years’ imprisonment was substituted.12
The health assessors’ reports and evidence
[24] The Department of Corrections engaged Dr Hamish Bartle and the respondent engaged Mr Jim van Rensburg to provide health assessor reports addressing the issues arising in the ESO application. Dr Bartle is a forensic psychologist in private practice who is also contracted to the Department of Corrections to conduct psychological
12 R v Narayan CA395/01, 22 April 2001.
assessments and provide forensic reports. Mr van Rensburg is a Registered Clinical Psychologist employed at the Auckland Regional Forensic Psychiatry Service, Mason Clinic, as well as operating a part-time private practice. It was in his private practice role that he was engaged on behalf of the respondent to prepare a health assessor’s report.
[25] The two health assessors met prior to the hearing to discuss the issues and identify areas of agreement or difference between them and they helpfully produced and filed a joint statement setting out their agreed or respective positions on the issues arising.
[26] As regards the actuarial assessment of the risk of the respondent committing a future relevant sexual offence they agree that despite their differing risk assessment strategies, both risk assessments converge in characterising the respondent’s risk as high, or in terms of the common language used to describe risk levels, Level IVb (Well Above Average).
[27] They also agree that the respondent displays a pervasive pattern of serious sexual offending, and that he meets the criteria set out in s 107IAA of the Act. Specifically they agree that, display of an intense drive, desire or urge to commit a relevant sexual offence is present, and that predilection for serious sexual offending is demonstrated, although proclivity is less strong. They also agree that self-regulatory capacity was implicated in the respondent’s offending, and while some improvements are noted as having occurred in the prison environment, the implications of this improvement in terms of risk in the community is less clear. Both health assessors also note limitations in terms of acceptance of responsibility and remorse for past offending, and in terms of understanding or concern about the impact of sexual offending on actual or potential victims.
[28] The principal issue on which they differ is the duration of the risk and the appropriate term of an ESO. In his written report Dr Bartle says that the nature and high level of the risk justifies the imposition of an ESO for a period of 10 years, although in the joint memorandum says that a minimum period of five years may be sufficient for the respondent to demonstrate whether he has developed sufficient
stability in affective and interpersonal functioning, and for the Department of Corrections to gather evidence of ongoing high risk should an extension beyond the five year period be required. On the other hand Mr van Rensburg considers that an ESO for a period of two to three years would be sufficient to demonstrate consistency in the respondent’s improved behavioural and emotional self-regulation he has shown while in prison, and for that to be reflected in reductions in dynamic risk.
[29] Both health assessors gave oral evidence at the hearing of the application and were cross-examined.
Dr Hamish Bartle — engaged by the Department of Corrections
[30] Dr Bartle holds a doctorate in clinical psychology from the University of Auckland (2012) and completed his internship with the Department of Corrections within a Special Treatment Unit for men convicted of sexual offences against children. He remained with the Department of Corrections for 10 years and for the past three years has been in private practice. He undertakes ACC work with people who have suffered serious injuries and who have behavioural issues, as well as treating private clients who self-refer for a range of psychological or behavioural issues. He is also on the Department of Corrections panel of psychologists and undertakes assessments such as his present report and supervision.
[31] In his health assessor’s report dated 21 March 2022 Dr Bartle listed the extensive sources of information he referred to in order to prepare his report including the respondent’s prison and psychological files, and several prior psychological assessments. He notes that having first obtained the respondent’s consent for his assessment, he met and interviewed him over a period of three hours on 10 February 2022.
[32] In assessing the respondent’s potential to re-offend, Dr Bartle used actuarial instruments and clinical risk factors were evaluated to assess the respondent’s risk of committing further relevant sexual offences in the community. The actuarial instruments he used included the assessment of static and dynamic risk factors applicable to sexual recidivism. Using the Static-99R instrument Dr Bartle assessed the respondent’s score of 5 as placing him in the Level IVa (Above Average) category,
and in the 89th percentile, meaning that 85 per cent of the normative sample scored lower than the respondent and 7.5 per cent scored higher. While commenting that any reference to absolute risk probabilities should be interpreted with caution as they are intended to describe relative risk, he notes that the group of men in the Static-99R high risk sample with a score of 5 had a predicted rate of sexual reconviction of 21.2 per cent (with a 95 per cent confidence interval of 18.0 – 24.8 per cent), five years from their release from prison. And at 10 years post-release the reconviction rate for men with a score of 5 was 32.1 per cent (with a 95 per cent confidence interval of 26.7 –
37.9 per cent).
[33] Using the Violence Risk Scale, Sex Offender Version (VRS-SO) instrument, Dr Bartle found that the respondent fell within a group of offenders with a Level IVa (Above Average) risk of reoffending. The estimated sexual recidivism rate for the group with the same VRS-SO score and degree of change as the respondent after five years is between 19.0 per cent and 23.3 per cent, and at 10 years between 28.9 per cent and 34.5 per cent. Dr Bartle’s analysis of the three VRS-SO dynamic subscale scores and using normative data supplied by the instrument’s developers showed the respondent had a score similar to those in the 94th percentile for the Sexual Deviancy sub-scale, the 95th percentile for the Criminality sub-scale, and the 97th percentile for the Treatment responsivity subscale. And he comments that this pattern points to the apparent role of deviant sexual interest in precipitating the offences, the presence of antisocial attributes including substance use and risk seeking behaviour, and the difficulties that denial and a low level of insight provide to successful treatment and management of risk.
[34] Using the Psychopathy Checklist — Screening Version (PCL:SV) instrument, Dr Bartle assessed the respondent as having a total score above the average score found for New Zealand offenders. Summarising the risk assessment Dr Bartle said:
In summary, structured assessment of Mr Narayan’s risk of further relevant re-offending using Static-99r, VRS-SO, and PCL:SV ratings, and noted clinical factors, provided some empirical justification for an uplift in risk. Further, there is little evidence in terms of Mr Narayan’s capacity or intention to manage this risk. Taking this into account suggests that there is a level IVb Well-above Average or High risk of Mr Narayan committing a further relevant offence while in the community.
[35] Dr Bartle is of the opinion that the respondent’s risk is likely to endure in the long term, and he says that it is unclear whether he has either the intention or the capacity to manage his risk in the community. He described the risk as follows:
It is considered that there is a Well-above Average or High risk that [the respondent] will engage in relevant offending within ten years of release. Further offending by [the respondent] would likely be against adult females unknown to him. There may be mental rehearsal of offending using pornography and objectionable material, and engagement in a series of offences that escalate in seriousness over time should his behaviour go unchecked. Further sexual offending by [the respondent] may include violence to gain compliance or humiliate victims or bystanders and may include deviant sexual acts likely to cause extreme distress to victims. Sexual offences may range from indecent assault to coercive rape. Early warning signs would include resumption of substance use, withdrawal from supports, experiencing stress through the process of legal matters, a refusal to allow communication and coordination between professional and family supporters, accessing sex workers, use of pornography, and engagement in sexualised behaviour such as exhibitionism which may be designed to look accidental. Escalating risk of sexual offending could also be indicated by reactive or instrumental violence, including aggravated robberies targeted at vulnerable victims (such as sex workers).
[36] As regards the s 107IAA(1) factors relevant to the Court’s assessment of whether there is a high risk that the respondent will in the future commit a relevant sexual offence, Dr Bartle considers that:
(a)Intense drive, desire, or urge to commit a relevant sexual offence.
Intense drive, desire, or urge to commit a relevant sexual offence is considered a feature of Mr Narayan’s offending. His sexual offending involved violence and threats to gain compliance. Further there was a disregard of victim’s distress and resistance. In prisons he continued to display sexualised behaviour which was likely to distress others and highly likely to be detected. These factors suggest an intense drive, desire, or urge at the time of offending, and possibly in the years following. The behaviours involved appear to be intentionally distressing to victims, suggesting that this drive is oriented toward offending rather than consensual sexual behaviour.
(b)Predilection or proclivity for serious sexual offending.
In [my] opinion there is evidence for predilection, while evidence for proclivity is inconclusive. Predilection for sexual offending is indicated by the use of objectionable material in the lead up to the offences, the use of coercion and humiliation beyond what was required for the commission of the offence, by sexual behaviours unlikely to gain consent or provoke enjoyment, and from engagement in this offending while other consensual sexual partners were (reportedly) available. Proclivity evidence is mixed. There is escalation of
offending suggestive of rehearsal, multiple offences over a three year period, including two on one night, and further sexualised behaviour likely to distress others post-conviction. The offences occurred over a fairly confined period of time but had onset in adolescence and ceased only at incarceration. Against proclivity, as his historical sexual offences (1997) and charges (1997 – 1999) went undetected until after his current incarceration, there has been no sexual recidivism in the community. Furthermore, while initially present, problematic sexual behaviour in the prison appears to have ceased.
(c)Limited self-regulatory capacity.
Self-regulatory capacity was previously an issue, however apparent improvements are untested in the community and are not considered to mitigate risk due to the planning, forethought, and intentionality of the index sexual offences. Problems with self-regulatory capacity (in the form of mood dysregulation, impulsivity and risk taking) destabilised Mr Narayan’s lifestyle in the lead up to his offending. Nonetheless, he has shown an increasing capacity for self-regulation in prison and has had no misconducts over the last three and [a] half years. It is not clear if this represents a motivational shift, or the impacts of consistent feedback from a highly-controlled environment. However, neither is it clear that this reduces risk, nor if it indicates capacity to avoid offending in the community. Intention or capacity to self-regulate in a manner that reduces risk has not been evidenced by engagement in intensive treatment or robust release planning.
(d)Lack of acceptance of responsibility or remorse for past offending.
Mr Narayan’s acceptance of responsibility and remorse are both considered lacking. In terms of remorse, Mr Narayan spoke at length about his regrets in terms of his own imprisonment and the impact on his family, however he reported anger, rather than sadness or shame at this time. Mr Narayan denies some of his offences. Of the offending that he admits, he has minimised responsibility by denying guilt, denying memory of offending, and more recently, denying any sexual intent. He identifies substance use as a risk factor for his offending and lifestyle at the time but reports that he has not engaged in treatment for this, and has no intention to do so.
(e)Absence of understanding for or concern about the impact of his sexual offending on actual or potential victims.
Mr Narayan’s understanding of the impact of his offending is unclear, however his level of concern would appear inadequate in terms of managing risk. He appeared to struggle to speak to this point in interview, tending to speak instead about the impacts on himself or his family, or not wanting to experience extreme anger again. He stated that “I understand what I did was wrong” and identified that victims had been intimidated and that they and their families had been impacted. Nonetheless, in interviews he showed a far greater concern for progressing with his appeal against his sentence calculation. Whatever his level of understanding or concern for past or potential victims, it has not been adequate to motivate him to engage with intensive treatment or robust release planning. As such, there would appear to
be [a] link between inadequate concern for actual or potential victims and ongoing risk.
[37] At the conclusion of his comprehensive report Dr Bartle summarised his opinion as follows:
Mr Narayan has been convicted of sexual offences against three adult female victims, all sex workers. The sexual offences involved weapons, threats, and physical coercion. The sexual offences themselves were intrusive and severe, and included sexually deviant elements which seemed intended to humiliate and degrade the victims. There was evidence of intentionality, forethought and planning, including the presence of objectionable material on Mr Narayan’s computer which was accessed prior to the offending. Mr Narayan either denies or minimises his sexual offences, and has declined opportunities to engage in treatment of appropriate intensity. He has been similarly disengaged around release planning and faces release without confirmed work or accommodation and with a lack of clarity around the appropriateness of his community support. It is unclear whether he sees any need to address or manage his risk in the community, however he has not provided concrete evidence of an intention or a capacity to do so. Considering actuarial risk and clinical factors, Mr Narayan is considered to present a high risk of sexual offending at the current time. He is considered to have shown an intense, drive or urge toward sexual offending during his offending and in the years following, and similarly appears to show a predilection for sexual offending (although proclivity evidence is mixed). He showed problems with self-regulation in the lead up to his offending and during his incarceration, although there is evidence of improvement during more recent years in prison. However, the offending itself showed intentionality and forethought and on balance improvements in self-regulatory capacity are not considered to reduce risk in the case of Mr Narayan. His acceptance of responsibility and remorse are both considered lacking. Similarly, while he reports some level of understanding of the impact of sexual offending on prior or potential victims, his level of concern has not been adequate to prompt any concerted effort to engage in appropriate treatment or release planning to avoid future such offending.
Mr Jim van Rensburg — engaged by the respondent
[38] Mr van Rensburg is a Registered Clinical Psychologist employed at the Auckland Regional Forensic Psychiatry Service, Mason Clinic, as well as running a part-time private practice. It was in this private practice capacity that he was engaged by the respondent to prepare a health assessor’s report. He has a Master’s Degree in Clinical Psychology, and a B Juris degree in Law both from the University of Port Elizabeth, South Africa. His professional work experience includes working as a Psychologist in the Department of Corrections in South Africa, and as Principal Psychologist at the Te Piriti Special Treatment Unit between 2002 and 2015 which operates solely for the treatment of men who have sexually abused children.
[39] In his Psychological Assessment Report dated 19 July 2022, Mr van Rensburg lists the sources of information he reviewed and considered for the purposes of preparing his report. He noted that he conducted a face to face interview of the respondent over a period of three hours on 5 July 2022 and had also conducted telephone interviews with members of the respondent’s family, a friend of the respondent and the Team Leader at Kainga Taupua where the respondent is presently residing.
[40] In his written report Mr van Rensburg set out the respondent’s personal background, and the respondent’s detailed account of the circumstances of his offending as explained to him by the respondent when interviewed for the report. He reports that the respondent told him that in about 1998 when he was around 20 years old he became friends with a man who was a low level drug dealer and user. The respondent said that the drug dealer was facing criminal charges and did not have funds to privately engage legal counsel, and so the respondent who was at the time enrolled at university but not attending classes, offered to assist him. The respondent said that to assist the drug dealer, he had become involved in distributing his drugs to raise funds to pay for the dealer’s legal costs.
[41] The distribution and selling of drugs quickly grew and to ensure that he was able to recover money owing from drug sales he obtained the services of one or two “enforcers” to go after customers who had defaulted on payment. One of the drug debt recoveries resulted in a car being taken to satisfy the debt, and the respondent’s efforts to falsify the transfer of ownership papers for the vehicle led to him being charged and convicted of fraudulent use of a document.
[42] The respondent said that because he had become such an effective drug distributor his principals gave him a brand new Toyota sports car for his 21st birthday. The respondent said that his drug distribution network became more sophisticated and involved him establishing a network of distributors who were responsible for only handling the drugs but not the money. Customers purchasing drugs would pay the money to the respondent’s associates working at café’s and be given a receipt which they would then exchange for drugs from another person located in a nearby carpark.
[43] The respondent said that he received the money for the drugs supplied. The respondent said that as a result of the money and drugs he was involved with he became involved in what he described as a hedonistic lifestyle in which sex workers often featured, either as drug users and distributors, or by providing their services in exchange for drugs. He said that he had a relationship with a friend of one of the sex workers, but not long before his offending in 2000 they broke up.
[44] Sometime after his relationship had broken up, two apartments in which he was holding the proceeds of drug dealing were broken into by armed intruders who held up the men guarding the drug money and stole it. The respondent said while it appeared that the intruders clearly knew where to find the money, he initially had no idea of how they could have known where the money was. He was subsequently told by his former girlfriend that she had been raped over a period of several days by several gang members who had forced her to identify the apartments where the respondent was holding the drug money. One of the gangsters was the boyfriend of one of the respondent’s former girlfriend’s friends. This female friend of the respondent’s former girlfriend became the victim of his offending in 2000.
[45] The respondent told Mr van Rensburg that he believed that his first victim knew who the intruders were who had taken his money. He said that when he located the first victim he invited her into his car on the pretext of obtaining oral sex, but once in the car he had threatened her with a knife and demanded information regarding the men who had stolen the money. He said that the first victim said she didn’t know who the intruders were and she pointed him to another sex worker who she said would know who they were.
[46] He said that after dropping the first victim off he drove around until he found the second victim who was the sex worker mentioned by the first victim. Once again he invited her into his car on the pretext of obtaining oral sex and then threatened her with a knife demanding that she tell him where her friends were who had taken his money.
[47] The respondent said that he and two of his associates had then taken the second victim to premises in Karangahape Road to interrogate her, but she got out of the car
and started running away. He said he had pursued and caught her and taken her to a room where they interrogated her and where the degrading assault on her had taken place. The respondent told Mr van Rensburg that he could have stopped the assault on the second victim if he had wanted to and that he took full responsibility for it as being driven by revenge for the way in which his former girlfriend had been raped, for the loss of his money, and “more importantly” because of “the dent in his reputation as an effective operator”.
[48] The respondent told Mr van Rensburg that at his trial he had said that he was too intoxicated and could not remember committing the offences, because if he had told the true sequence of events it would have put his life and others associated with him in extreme danger and also expose the drug operation he had been involved with. Mr van Rensburg said:
[The respondent] was adamant that he did not obtain any sexual gratification from any of the actions performed against the two victims. His purpose was to humiliate and intimidate in order to obtain information from them.
[49] As regards the December 1997 offending, the respondent told Mr van Rensburg that he denied any involvement in the offending. He said that he was recovering from meningitis at the time the offences were committed. He said he had never been identified by the complainant but that he was nevertheless convicted on the basis that his DNA was “somehow connected to the offences”. And he said that he has instructed his counsel to lodge an appeal against the convictions for the 1997 offending.
[50] Commenting on the implications of the respondent’s account and explanation of the offending for which he was convicted and imprisoned, Mr van Rensburg said:
The nature of the two sets of sexual offences is not in dispute. The common factor in both sets of offences is their sadistic nature. In my opinion Mr Narayan offered a more cogent context and motive for the sadism in the 2000 offending, than what his victims claimed to have been the case. His version of events does not reduce the serious and sadistic nature of the offences, but if accepted, it should affect the nature of his future risk of sexual offending and the manner in which such risk will be managed, i.e. it comes down to the difference between managing the risk of a sadistic individual who has an appetite for, and obtains sexual gratification from sadistic actions against sex workers per se, as opposed to someone who would potentially use sadistic methods as a form of instrumental violence and intimidation to obtain a goal.
His problem is that he has been convicted of the 1997 offending, which he denied. There is no context or clear motive for those offences, which may create the impression of a pattern of sadistic behaviour (for the sake of sadism) to obtain money. Because of his denial, providing a context or motive for the 1997 offending is problematic. Bearing in mind that he is appealing his convictions, the closest I could get is to hypothesise that it was possibly a reaction at a time when he was evidently disoriented due to meningitis, a view that was broadly shared by Mr Bauer (20 November 2020).
[51] Summarising his opinion regarding the respondent’s response to such treatment as he has undertaken or been offered, Mr van Rensburg said:
In summary, although his offending revealed anti-social behaviour on the part of Mr Narayan, his overall profile is more consistent with narcissistic personality traits, using strong-arm tactics to support and protect his interests. The distinction is not important from a sanction point of view but has implications for rehabilitation. Anti-social personality traits usually develop very early in life within insecure and dysfunctional home environments and then result in frequent law-breaking activities. The stable home environment created by his mother, protected Mr Narayan from a collapse into anti-social activities, although he got close to that. He instead learnt to manipulate and develop narcissistic traits. Individuals with a strong anti-social background are usually far less able to control their impulses or to learn from their experience than would be the case with narcissists. The latter are also typically more intelligent, educated and socially adaptable, which are helpful factors for their rehabilitation. In Mr Narayan’s case it was evident that he gained control over his impulses and emotions through the course of his sentence and showed overall improvement in his conduct and attitude. While assessment instruments, such as the Psychopathy Checklist (PCL) make it easy to categorise individuals on the basis of their behaviour during an impetuous phase in their youth, it is important to take a holistic view of the individual to arrive at a more balanced view of their future.
[52] As noted, and similarly to Dr Bartle, Mr van Rensburg concluded that using the Static-99R instrument the respondent’s score places him in the above average risk category for being charged with or convicted of a further relevant sexual offence within five years of release from prison. Using the VRS-SO instrument Mr van Rensburg found that the respondent obtained a combined score in the well above average risk category with the predominantly present areas of concern present during the period of his offending being: sexually deviant lifestyle; sexual compulsivity; offence planning; cognitive distortions; criminal personality traits; interpersonal aggression; erratic emotional control; lack of insight into his offending; substance abuse; sexual offending cycle; treatment compliance; impulsivity; deviant sexual preference; and intimacy deficits.
[53] Mr van Rensburg summarised the respondent’s risk of future offending in his “Risk Parameter Statement”:
There is a well above average risk that Mr Narayan may commit another sexual offence in the future. In my opinion such risk is likely to occur in the context of an offensive scheme involving sex workers or other women that Mr Narayan may be involved in, and where the sexual offence may be instrumental to achieve a goal. I do not believe that he is at risk of random sexual offending for the purpose of sexual gratification.
[54] Having accepted the respondent’s explanation for his involvement in the offending against the two victims in 2000 as being motivated by revenge rather than sexual gratification, Mr van Rensburg addressed the s 107IAA factors on the basis that the respondent’s explanation is accurate. As to whether the respondent displays an intense drive, desire or urge to commit a relevant sexual offence, Mr van Rensburg says that he had gained the impression that the respondent had deliberately chosen sexual offending to obtain information and to take revenge for similar offending against his former girlfriend rather than because he intended to obtain sexual gratification from the offending. However as the respondent was driven by a desire to humiliate and intimidate in order to obtain his primary goals, Mr van Rensburg concluded that he meets this criterion.
[55] As noted Mr van Rensburg also agrees with Dr Bartle that the respondent’s repeat offending indicates that he has a predilection or preference for that kind of serious sexual offending, and that there is probably not enough grounds to show a proclivity for serious sexual offending.
[56] As regards the respondent’s self-regulatory capacity, Mr van Rensburg says that over the past five years the respondent has convincingly shown his capacity to self-regulate while in the structured prison environment. He says that while this shows very promising signs of self-control, the respondent will have to prove that he can maintain that in the community, however until that is demonstrated, he considers that it has been shown that the respondent has limited self-regulatory capacity.
[57] In relation to whether the respondent has demonstrated acceptance of responsibility and remorse for past offending, Mr van Rensburg says that although he has not accepted responsibility for the 1997 offending, he has accepted responsibility
for the 2000 offending by saying that he regretted it and it would have been a terrible experience for his victims. However Mr van Rensburg also notes that the respondent qualified his expression of regret by saying that the offending was a thing of the past and that there was nothing that he could do about it to make it better for the victims. He considers that the respondent’s attitude probably reflects his need for a deeper understanding of the impact on the victims of his offending, and he is therefore of the opinion that he also meets this criterion, as well as the criterion dealing with the offender’s understanding of or concern about the impact of his sexual offending on actual or potential victims.
[58]Mr van Rensburg concludes his report saying:
It is likely that the Court will impose an Extended Supervision Order, as Mr Narayan appears to meet the criteria imposed by Section 107 of the Parole Act, 2002.
Thus far in his journey through the Criminal Justice System, Mr Narayan has been considered to be a man who obtains sexual pleasure and gratification from sadistic acts randomly performed on sex workers. Two sets of sexual offending against sex workers with similar undertones might suggest that. However, he still denies the first set (1997) of offences and has lodged an appeal against them. Assuming that those offences were in fact committed, they would have occurred in the context of him suffering from acute meningitis which caused behaviour change and poor decision making on his part. That offending did not appear to be primarily driven by sexual gratification, but rather by power and control considerations.
Mr Narayan has in recent years provided a coherent version of the context within which the second set of offences (2000) took place, i.e. to obtain information from his victims in order to protect his drug operation, and to take revenge for violent sexual offending perpetrated by his victims’ associates against his ex-girlfriend. …
…
Mr Narayan has displayed pro-social behaviour over the past years in prison. While commending him for that, the health assessor and I both indicated that he should now demonstrate the same while in the community. In my view he should be given full credit for it if he is able to maintain pro-social behaviour over a period of 2 to 3 years in the community. I would therefore suggest that the length of the ESO should not exceed that period. If Mr Narayan failed to maintain pro-social behaviour, the Department of Corrections could always request an extension of the ESO for a longer period.
Submissions
The applicant
[59] Mr Tantrum for the applicant submits that the respondent is an eligible offender withing the meaning of s 107C of the Act. Referring to the opinions of Dr Bartle, Mr Tantrum submits having regard to the respondent’s history of repeated serious sexual offending, that it has been well established by the evidence that he has or has had a pervasive pattern serious sexual offending as is required by s 107I(2)(a), and further that the applicant has established that there is a high risk that the respondent will in future commit a relevant sexual offence having regard to the matters set out in s 107IAA(1). Mr Tantrum submits that the respondent satisfies each of the criteria specified in s 107IAA(1)(a)–(d) and says that the Court should be well satisfied that the respondent presents a high risk of committing a relevant sexual offence in the future.
[60] As regards the duration of the ESO, the applicant says that it should be made to extend for the maximum period of 10 years, that being the minimum period required for the purpose of the safety of the community having regard to the high level of risk the respondent presents. And Mr Tantrum notes that the respondent has not completed offence-related treatment of intensity likely to reduce his risk of offending. The applicant submits that there are no other forms or methods of monitoring the respondent in the community that would provide adequate monitoring or risk management, and Mr Tantrum submits that the applicant’s case and the evidence before the Court provides strong justification for the making of an order for the 10 year period sought in the application.
[61] Should an ESO be made, the applicant notes that the standard conditions set out in s 107JA of the Act will apply.
The respondent
[62] As a preliminary matter Ms Wickliffe says that although the respondent has challenged the accuracy of his parole eligibility date and final release date, he nevertheless accepts that for the purposes of this application the Court is entitled to
rely on the information relating to the respondent’s sentence and release date contained in the application and as provided by the Chief Executive of the Department of Corrections.
[63] Ms Wickliffe submits that the applicant has not shown that the respondent has a pervasive pattern of serious sexual offending as required by s 107I(2)(a) and consequently the application does not meet the criteria for the imposition of an ESO. Ms Wickliffe says however that should the Court consider that the required criteria are satisfied and an ESO should be made, it should be for a duration of two to three years rather than the 10 years sought by the applicant.
[64] Ms Wickliffe refers to Mr van Rensburg’s health assessor report in which he concedes that the two sets of sexual offending provide proof that it was pervasive and serious offending, however she says that notwithstanding the findings of both health assessors, the respondent has not necessarily displayed a pervasive pattern of serious sexual offending. As regards the assessment of the risk of the respondent committing a relevant sexual offence in the future, Ms Wickliffe notes that Mr van Rensburg concluded that the risk was well above average, although any future offending was likely to occur in the same context as the respondent’s previous offending with sexual violence being employed to achieve a goal, rather than for the purpose of sexual gratification.
[65] Turning to the s 107IAA(1) factors, Ms Wickliffe notes that both health assessors agree that each of the criteria are satisfied. As regards the respondent’s responsiveness to treatment, counsel notes that when first imprisoned he is described as being angry and not responsive to the idea of engaging in treatment during his early years in prison. And subsequently other factors prevented him from undertaking treatment programmes. Ms Wickliffe notes that the applicant did volunteer to attend programmes in 2007 and 2009 but was told he was ineligible for them at that stage. Subsequent involvement in treatment programmes was precluded by the respondent being charged in 2010 with the 1997 offending. And although he was scheduled to attend a programme in July 2019, that programme was cancelled until July 2020 by which time the respondent had commenced his appeal against his sentence imposed
for the 1997 offending and as a consequence he had declined to participate in the programme.
[66] As regards the duration of an ESO, Ms Wickliffe notes that the term of the order must be the minimum period required for the purposes of the safety of the community, and submits the 10 year period sought by the applicant is excessive. Referring to Mr van Rensburg’s report, she submits that the risk posed by the respondent is significantly less than the applicant contends. Ms Wickliffe says that the respondent’s behaviour during his last 10 years in prison have shown an improvement in most if not all of the VRS-SO areas of concern identified in the assessors’ reports.
[67] Ms Wickliffe notes that Mr van Rensburg has identified that the respondent possesses a number of protective factors relating to his potential to reoffend, including employability; commitment to undertake study and training; strong family support; improved emotional and sexual self-regulation and prosocial habits; and potential stable accommodation with his mother and stepfather.
[68] Ms Wickliffe acknowledges that the respondent denies having any responsibility for the 1997 offending, and that such denial is a relevant factor in relation to the duration of an ESO, but notes that the respondent does not deny all of his offending, and says that prior to his release from prison he had attended individual psychotherapy which included treatment for emotional regulation, propensity for violence, and safety planning. Ms Wickliffe says that the areas of concern identified by Mr van Rensburg were predominantly present during the period of offending and the improvement he showed in his last 10 years in prison should indicate that they are no longer present to the same extent. Counsel submits that the respondent should be given the opportunity to demonstrate his willingness and ability to comply with the conditions of an ESO without the “crushing effect” of a 10 year order, and an order for a period in the region of two to three years is appropriate.
Discussion
[69] Although in his written report Dr Bartle said that in his opinion there is a well above average or high risk that the respondent will engage in further relevant offending
within 10 years of his release, in the course of his oral evidence he said that following his conference with Mr van Rensburg he can see a pathway to risk management that would involve the respondent undertaking community-based individual intervention and counselling with a departmental psychologist. He said that such psychological counselling would need to take place initially on a weekly basis and extend over a period of between one and two years. That process would provide a significant period of time with the respondent living in the community to enable an assessment to be made as to whether it was effective. Dr Bartle said that such an extended period of individual intervention and psychological counselling would provide some sense of the respondent’s capacity to manage his risk, and enable him to be monitored for behavioural change, changes in emotional functioning and changes in relationship functioning over that time. In Dr Bartle’s opinion, at the end of five years the psychologists would have a well-informed sense of whether the counselling had been effective. He said that in his opinion the appropriate duration of an ESO would be five years “as a minimum”.
[70] Mr van Rensburg’s opinion that an ESO of two to three years would be sufficient to enable the respondent’s risk to be addressed and mitigated by individual one on one counselling was founded upon his acceptance of the explanations he was given by the respondent regarding the circumstances in which the 2000 offending took place. Mr van Rensburg accepted the respondent’s account of the drug dealing context of the offending against the two sex workers as being motivated by revenge rather than by deviant sexual gratification. Mr van Rensburg acknowledged however that if in fact the respondent’s offending was motivated by sexual gratification and not revenge as he claimed in his elaborate explanation of the background to his 2000 offending, his failure to acknowledge that his offending was motivated by sexual gratification would present a significant obstacle to effective progress being able to be made by the psychological counselling he has proposed. Mr van Rensburg also acknowledged that the departmental psychologist involved would necessarily have to proceed upon the basis that the respondent’s offending had been committed in the manner described by the complainants and upon the factual basis of the criminal prosecution of the charges he was found guilty of, and certainly not on the basis of the respondent’s version of the events or his explanation of his revenge motivation.
[71] In my view it is clear that by providing Mr van Rensburg with his elaborate explanation of the drug dealing and rape of his former girlfriend, the respondent has constructed a false and self-serving account of his offending in an attempt to avoid acknowledging that deviant sexual gratification was the actual motivation for his offending. His psychological profile includes a tendency to be manipulative and this is a clear example of that behaviour. Unfortunately, Mr van Rensburg accepted as accurate what is a patently false account, and proceeded to found his opinion on his conclusion that the respondent’s offending was motivated by revenge rather than self- gratification.
[72] In my view the fact that the respondent has constructed such an elaborate and false account of the background to his offending for the purpose of misleading the psychologist who was engaged on his behalf clearly shows that he is not only manipulative, but that he appears to be actively seeking to deflect an examination of his actual motives for the offending — namely deviant sexual gratification. Such an approach shows that he has not genuinely acknowledged his offending and the motivation behind it.
[73] In my view the respondent’s failure to acknowledge the deviant sexual motivation behind his offending shows that the high risk of further offending he presents, as determined by the two health assessors, is substantially corroborated and confirmed.
[74] The respondent’s denial of being motivated by deviant sexual gratification will also present a very significant obstacle to any progress being made with the psychologist’s counselling. The respondent’s denial to Mr van Rensburg of having any involvement or responsibility for the 1997 offending and saying that he was recovering from meningitis at the time the offences were committed is another obvious fabrication made to avoid his offending showing him to be motivated by a sexual deviancy. He implausibly claims to have been convicted on the basis that his DNA was “somehow connected to the offences” and says he has instructed his counsel to lodge an appeal against the convictions for the 1997 offending. I find that this explanation is yet a further example of the respondent’s manipulative behaviour and it too reveals that he has not accepted responsibility for that offending, which is an
attitude that will present a significant obstacle to any effective progress of his risk mitigation counselling.
[75] I find Dr Bartle’s opinion and assessment of the nature and duration of the high risk that the respondent presents to be soundly based and I propose to place reliance on his assessments and opinion in reaching my own conclusions on the issues and statutory criteria. I find that each of the pre-requisite criteria for the making of an ESO have been established by the applicant. I am well satisfied by the evidence that the respondent has, or has had, a pervasive pattern of serious sexual offending, and having found that all and each of the criteria set out in s 107IAA(1)(a)–(d) have been proven to exist, I further find that there is a high risk of him committing a relevant sexual offence in the future. Specifically, I am satisfied that the applicant has shown that the respondent displays an intense drive, desire or urge to commit a relevant sexual offence; that he has a predilection for serious sexual offending; that he has limited self- regulatory capacity; and that he displays both a lack of acceptance of responsibility or remorse for his past offending and that he displays an absence of understanding for or concern about the impact of his sexual offending upon his victims or potential victims.
[76] In my view an ESO for a period of five years is the minimum period that would meet the objectives of protecting members of the community from the respondent and from the real and ongoing risk he poses of committing a future serious sexual offence. The respondent’s offending was of the most serious kind and despite the lengthy period of his imprisonment it is clear that although he has shown some behavioural progress over recent years, the core issues of acknowledgement of his offending and insight into the drivers of his offending and its effect on his victims have not been genuinely addressed. As a result I consider that he presents a very high risk of future offending and unless he demonstrates over the five years of the term of the ESO I shall impose that he has acknowledged his offending and genuinely addressed the high risk he presents of future offending, the applicant will likely apply to extend the ESO period further in order that the public be protected.
Result
[77] I make an order granting the application, and make an Extended Supervision Order for a period of five years commencing from the date of the respondent’s release from prison on 11 May 2022.
[78] I also make an order pursuant to s 107IAC(1) of the Parole Act 2002 directing the Parole Board to impose an intensive monitoring condition on the respondent.
Paul Davison J
0
5
1