Department of Corrections v Pori
[2017] NZHC 3082
•11 December 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2017-419-49 [2017] NZHC 3082
BETWEEN DEPARTMENT OF CORRECTIONS
Applicant
AND
TOMMY APERA PORI Respondent
Hearing: 11 December 2017 Counsel:
J Tarrant for Applicant
Mr James for RespondentJudgment:
11 December 2017
Reasons:
12 December 2017
REASONS JUDGMENT OF DUFFY J
This reasons for judgment was delivered by me on 12 December 2017 at 2.15 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Hamilton
Public Defence Service, Hamilton
DEPARTMENT OF CORRECTIONS v PORI [2017] NZHC 3082 [11 December 2017]
[1] On 11 December 2017, I granted the application for an extended supervision order (ESO) for a term of seven years and I directed the Parole Board to impose intensive monitoring as a special condition of the ESO. I also made an interim intensive supervision order to take effect in the interim. My reasons for doing so now follow.
[2] An ESO was made against Tommy Apera Pori on 4 August 2011 for a period of ten years (the 2011 ESO).1 Because Mr Pori has been imprisoned for re-offending and breaches of his ESO in the interim, the 2011 ESO is not due to expire until 24
October 2024.2
[3] The Chief Executive of the Department of Corrections considered that
Mr Pori’s conduct warranted the imposition of an intensive monitoring condition. The possibility of imposing such a condition was introduced under the Parole (Extended Supervision Orders) Amendment Act 2014 (the Amendment Act 2014). It was accepted that there is no mechanism by which the Chief Executive may apply to this Court for an order requiring the Board to impose an intensive monitoring condition on an existing ESO, if that ESO was made before the 2014 amendment came into force.3
It follows that where an offender is already subject to an ESO imposed under the old statutory provisions, like Mr Pori, the Chief Executive must make a new application for an ESO if it seeks the addition of an intensive monitoring condition. That is what the Chief Executive has done in the present case.4
[4] In a memorandum filed on 8 December 2017, Mr Pori confirmed that he does not oppose either the application for a new ESO or the imposition of an intensive monitoring condition. However, this did not relieve the Court of its obligation to assess whether an ESO should be imposed with regard to the two-step test in s 107I(2), and further to consider whether an intensive monitoring condition should be imposed
under s 107IAC.
1 Chief Executive of the Department of Corrections v Pori HC Napier CRI-2011-441-17, 4 August
2011.
2 See Parole Act 2002, ss 107P and 107Q.
3 Chief Executive of the Department of Corrections v Ranui [2016] NZHC 1174 at [9] and [16].
4 The judicial basis for taking this approach was recognised in Chief Executive of the Department of Corrections v Ranui, above n 3; see also Chief Executive of the Department of Corrections v Aima’asu [2016] NZHC 603 at [10].
Mr Pori’s background
[5] Mr Pori is aged 56. He was born in the Cook Islands and was convicted of a number of criminal offences there. His sexual offending in the Cook Islands includes indecent assault on a girl under 12 in 2000 (five years’ imprisonment); rape in 1993 (five and a half years’ imprisonment); being unlawfully in a house and assault of a child in 1988 (penalty unclear); and rape in 1983 (four years’ imprisonment). His offending in 1983 and 1988 involved entering the victim’s house at night without consent.
[6] Mr Pori moved to New Zealand in 2005. He was convicted of unlawful sexual connection with a girl under the age of 12 in 2006 and sentenced to five years’ imprisonment.5 The victim of that offending was a nine-year-old girl. Mr Pori was in a relationship with her mother. He entered the victim’s bedroom and night and sat by her bed, putting his hand inside her clothing and inserting his fingers into her genitalia.
[7] In August 2011, the Chief Executive sought and obtained an extended supervision order for a period of ten years. Mr Pori consented to the imposition of an ESO at that time and no judgment containing any detailed risk assessment has been made available to me.6 Since the imposition of the ESO in 2011, Mr Pori has breached that order on numerous occasions and has also been convicted of violent offending on multiple occasions.
[8] A health assessment report for Mr Pori was prepared on 9 May 2017. The writer’s interviews with Mr Pori all ended prematurely due to safety concerns, so the report is largely based solely on file information. However, the writer does note from the interviews that despite initially acknowledging he had done “bad things” in the past, Mr Pori tended to minimise his sexual offending and risk of future offending.
[9] Having reviewed Mr Pori’s criminal history, including the summaries of facts available for Mr Pori’s offending, the writer concluded that Mr Pori has shown himself
to be “highly sexually preoccupied and compulsive”. His pattern of offending shows
5 R v Pori HC Auckland CRI-2006-004-7121, 8 December 2006.
6 The copy of Gendall J’s order in Chief Executive of the Department of Corrections v Pori, above n 1, which the Court has on file does not record any reasons for the imposition of the order.
impulsivity and poor regulation of sexual urges, compounded by alcohol use. In particular, he has demonstrated a preparedness to invade people’s homes with the intention of finding a victim despite others being in close proximity. He pushes sexual boundaries and misreads interpersonal cues. Further, the writer notes that punishments and restrictions applied to him in respect of his offending appear to have had little or no deterrent effect. This is evidenced by the numerous breaches of his existing ESO.
[10] The writer also refers to Mr Pori’s history of violence and expresses the opinion that he displays significant problems with respect to emotional and behavioural control.
[11] Mr Pori has previously received psychological treatment in prison, but has failed to complete any of the programmes he started. His participation in the programmes was terminated either because of sexualised behaviour towards female staff, or a lack of progress being made. The writer therefore expresses the opinion that Mr Pori has not benefited from the treatment he received.
[12] Having discussed the results of a number of actuarial tools and measures, the writer concludes that Mr Pori presents a very high risk of committing a further relevant sexual offence within 10 years of release from prison. Based on his history, this could range from indecent assault to rape, of young girls or adult females.
[13] Finally, commenting on Mr Pori’s future monitoring, the writer expresses the view that Mr Pori has done little personally to support his own reintegration. He has failed to engage meaningfully in psychological treatment, has continued offending following his release from prison and breached his ESO, and has behaved aggressively, violently and sexually towards those offering him personal support. This limits the support and reintegrative options available to him.
Analysis
[14] The purpose of an ESO 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.7 In this case the focus is Mr Pori’s risk of sexual offending; the application is not pursued on the basis of Mr Pori’s risk of violent offending.
[15] An ESO has the potential to place major restrictions on the freedom of movement and freedom of association of an offender,8 and therefore it is necessary to carefully consider whether (and to explain why) the criteria are met despite a lack of opposition by the defence.
[16] Mr Pori meets the definition of eligible offender in s 107C of the Parole Act. He was convicted in 2011 of unlawful sexual connection, which is a relevant sexual offence within the definition in s 107B(2). Since then he has not ceased to be subject to either a sentence of imprisonment or an ESO.
[17] The Amendment Act 2014 introduced two major changes. First, it broadened the scope of the offending covered by an ESO; and secondly it elevated the test for making an ESO. Accordingly, the assessment of Mr Pori’s eligibility for an ESO is now subject to a higher threshold than was the case when the 2011 ESO was imposed.9
[18] The Court must now be satisfied of the two limbs of s 107I(2), namely a pervasive pattern of serious sexual offending and a high risk of committing a serious sexual offence in the future. In determining the latter the Court takes account of the factors set out in s 107IAA.
Pervasive pattern of serious sexual offending
[19] “Serious sexual offending” is not defined in the Parole Act. The Court of
Appeal has observed that “serious” is to be given its ordinary meaning in this context, which is:10
7 Parole Act 2002, s 107I(1).
8 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [56].
9 See Chief Executive of the Department of Corrections v Ranui, above n 3, at [9] where it was recognised that the higher threshold would now apply.
10 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [44].
‘important, grave; having (potentially) important, esp. undesired, consequences; giving cause for concern; of significant degree or amount, worthy of consideration’.
[20] The Court of Appeal has further held that analogy to the provisions of the Sentencing Act 2002, in particular the aggravating and mitigating factors listed in s 9, may assist in determining whether or not sexual offending is “serious” for the purposes of the ESO regime in the Parole Act.11
[21] The sexual offences of which Mr Pori has previously been convicted are self- evidently serious: indecent assault on a girl under 12, two instances of rape and one of unlawful sexual connection with a girl under the age of 12. It is notable that all of these are included as “relevant sexual offences” in s 107B(2) of the Parole Act, i.e. offences which make an offender prima facie eligible for an extended supervision order. All exhibit aggravating features, whether it is home invasion or the abuse of a child’s trust.
[22] As for the existence of a “pervasive pattern”, Muir J recently considered the meaning of this phrase in Chief Executive of the Department of Corrections v Ihimaera:12
The word “pervasive” is defined as “having the quality or power of pervading; penetrative, permeative, ubiquitous”. It is in turn used to qualify the word “pattern” which is defined to mean “a regular and intelligible form or sequence discernible in certain actions or situations; esp. one on which the prediction of successive or future events may be based”. Taken together the two words suggest that the previous offending must have characteristics so prevalent and common as to provide a reliable predictor of relevant future conduct.
(footnotes omitted)
[23] Downs J has further noted that for a pervasive pattern to arise, a pattern of serious sexual offending must “permeate” or “spread” across the offender’s background.13 In the present case I am satisfied that Mr Pori’s serious sexual offending, which has occurred with reasonable regularity since 1983 (taking into account periods of imprisonment), permeates across his background and amounts to a
pervasive pattern. Mr Pori’s previous offending, which typically involves invading
11 Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298 at [42].
12 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [46].
13 Chief Executive of the Department of Corrections v van der Plaat [2016] NZHC 3186 at [45].
his victim’s bedroom at night, has characteristics that are sufficiently prevalent and common as to provide a reliable predictor of relevant future conduct.
[24] As an aside, I did not consider it appropriate to take into account Mr Pori’s breaches of his existing ESO at this stage in the analysis. The Crown included these to bolster its argument for a pervasive pattern of serious sexual offending. The breaches consisted in attending church where children were present; talking to a young girl in school uniform; contacting a female prison officer despite the existence of non- association conditions; entering a public park; and sending sexually offensive text messages. Such conduct, while clearly relevant to the analysis of Mr Pori’s future risk, does not amount to “serious” sexual offending. Nevertheless, as noted above I was satisfied that Mr Pori’s previous convictions for serious sexual offending amount to a pervasive pattern.
High risk of future relevant sexual offending
[25] Section 107IAA(1) governs the Court’s determination of whether a high risk of committing a relevant sexual offence in the future exists:
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.
[26] The s 107IAA(1) factors are mandatory and conjunctive: the Court must be satisfied of each before concluding that the offender presents a high risk of committing
a relevant sexual offence.14 The writer of the health assessment report reached the following conclusions on the s 107IAA(1) factors:
(a) Mr Pori has an intense drive, desire or urge to offend sexually, demonstrated by his lack of inhibition by social context, interpersonal barriers, victim protestations, or the risks and consequences of his offending. He is both opportunistic and has created opportunities to offend.
(b)Mr Pori has a proclivity for serious sexual offending, given that he is quick to sexualise his interactions with females and easily transgresses others’ interpersonal boundaries in pursuit of sexual gratification.
(c) The evidence of a predilection for serious sexual offending is less clear, given that he has shown some interest in developing a stable relationship with females to whom he is attracted.
(d)Mr Pori experiences self-regulatory problems, given the repetitive, impulsive and compulsive nature of his sexual behaviour. His self- regulatory capacity is further undermined by alcohol use; a lack of empathy for others; an inflated sense of his needs and personal value; a perception of females as sexual objects; and his ready interpretation of interpersonal cues as being indicative of sexual interest.
(e) Mr Pori has not accepted responsibility or displayed remorse for his past sexual offending, given that he continues to sexually offend despite clear and constant feedback and numerous periods of imprisonment as well as other sanctions and restrictions.
(f) While Mr Pori has not demonstrated callousness, he has shown limited understanding for or concern about the impact of his sexual offending on both his actual and potential victims. In terms of his potential victims, he has a distorted and minimised view of his risk of sexual
offending, and typically responds with aggression and threats of violence when others have attempted to discuss his risk of re-offending with him. As a consequence, he has not meaningfully engaged with treatment. In terms of his actual victims, he has not been inhibited by any concern for other’s needs or their wellbeing.
[27] Whilst I noted that the Court must make up its own mind and may not simply “rubber-stamp” the health assessor’s report,15 in this case I considered the health assessor’s opinion on each of the s 107IAA(1) factors was well supported by the evidence of Mr Pori’s past conduct. In particular I noted his conviction as recently as
2016 for being unlawfully in a yard, which was motivated by a belief that his female neighbour was “giving him the eye” and wanted to have sexual intercourse with him. He entered her home through the back door without knocking, and when the dog began barking his neighbour closed the door on him. He said “Please” and she said “No”. He was at the time subject to an ESO. The facts behind Mr Pori’s 1988 conviction in the Cook Islands for being unlawfully in a house and assault of a child demonstrated a similarly concerning lack of inhibition. He entered the house of a male acquaintance with the intention of having sex with one of his daughters. He did not find who he was looking for and left the house. Some time later, he entered another house with the intention of having sex with another man’s daughter. He found his intended victim and her parents all asleep in the same room, and climbed onto the victim’s bed dressed only in his underwear. In general Mr Pori has shown that he is highly sexually preoccupied and willing to pursue his sexual desires without regard for his victims and despite obvious risks and consequences.
[28] Accordingly I accepted the report writer’s assessment that Mr Pori has an intense drive, desire or urge to commit a relevant sexual offence; a proclivity for serious sexual offending; limited self-regulatory capacity; and a lack of concern for his victims. I considered that he presents a high risk of committing a relevant sexual offence such as sexual violation (of a young person or an adult), or sexual conduct with a child or young person.
Duration of order
[29] It follows that the test for imposing a new ESO was met and I was satisfied that an ESO should be imposed. The maximum term for such an order is 10 years.16
As to determining the length of the term, s 107I(5) of the Parole Act provides:
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.
[30] In the present case the Chief Executive had sought an ESO of 10 years duration for the protection of the community. Mr Pori has continued to offend while subject to an ESO and has made no progress in rehabilitation despite being offered treatment programmes in prison. The health assessment report writer considers that Mr Pori’s very high risk of relevant sexual offending is likely to continue for 10 years after his release from prison.
[31] Despite 10 years being the maximum term of an ESO, the Chief Executive can, during the term of an ESO, apply for a further ESO on terms that extend the new order beyond the maximum term of the earlier order.17 However, at the hearing before me the Chief Executive acknowledged that because Mr Pori has already served three years of the 2011 ESO a seven year term would be sufficient for the new ESO. Given the Chief Executive’s acknowledgment I considered that the new ESO should apply for seven years, which left the total length of time under which Mr Pori will be subject to an ESO the same as when the 2011 order was imposed.
[32] Whilst I accept Mr Pori presents at a high level of risk, to be subject to an ESO for 10 years is a considerable restriction on liberty. The Chief Executive’s reason for the new application was to obtain a direction for intensive monitoring rather than to obtain an ESO for a longer period of time than the 10 years that resulted from the 2011
ESO.
16 Parole Act, s 107I(4).
17 There is nothing in the Parole Act to prevent this from being done.
[33] If towards the end of the term of the ESO the Chief Executive considers
Mr Pori should remain subject to an ESO for a further period of time, a further application can be made to achieve that outcome.
Intensive monitoring condition
[34] An intensive monitoring condition is a condition requiring an offender to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the chief executive, to undertake person-to-person monitoring.18 The Court must specify the duration of the condition, and the maximum period for which an intensive monitoring condition can be imposed is 12 months.19
[35] There is no statutory test as to when intensive monitoring is required or permissible. However, an intensive monitoring condition is generally only imposed where the offender poses a high risk of further relevant sexual offending such that there is a need for external controls to mitigate that risk and close monitoring is required.20 In Chief Executive of the Department of Corrections v Popata, Downs J imposed an intensive monitoring condition for a 12-month period in the following circumstances:21
(a) Mr Popata’s release conditions were due to expire in six months;
(b)Mr Popata had a significant history of failing to comply with conditions, and his offending had continued within prison. Many of
Mr Popata’s convictions stemmed from conduct commenced by indiscriminate approaches. Person-to-person monitoring would
significantly reduce the risk of re-offending.
18 Parole Act, s 107IAC(2).
19 Parole Act, s 107IAC(3).
20 Chief Executive of the Department of Corrections v Parsons [2017] NZHC 229 at [31]; Chief
Executive of the Department of Corrections v Brown [2016] NZHC 1038 at [36].
21 Chief Executive of the Department of Corrections v Popata [2017] NZHC 2343 at [65]–[69].
(c) Mr Popata’s sexual offending exhibited poor impulse control notwithstanding appreciable risk of prompt detection (for example, he had indecently assaulted a prison librarian).
(d)Person-to-person monitoring was the most obvious means of mitigating risk in connection with Mr Popata's pattern of indiscriminate sexual offending, in terms of both offence prevention and escalation.
[36] I considered that Mr Pori’s case presented similar concerns. His offending also largely stems from conduct commenced by indiscriminate approaches to females. He too exhibits poor self-control notwithstanding risk of prompt detection (for example, his assault of a child despite her parents sleeping in the same room). He has continued to make inappropriate sexual advances while subject to an ESO or in prison. Accordingly, I was satisfied that person-to-person monitoring would significantly reduce his risk of re-offending sexually.
Duffy J
4
7
0