Department of Corrections v Turi
[2021] NZHC 3488
•16 December 2021
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2021-441-000005
[2021] NZHC 3488
BETWEEN DEPARTMENT OF CORRECTIONS
Applicant
AND
HARLEM RAWIRI TURI
Respondent
Hearing: 8 December 2021
Memoranda of submissions filed:
11 December 2021 – M J R Blaschke for the Applicant 15 December 2021 – M J Phelps for the RespondentAppearances:
M J R Blaschke for the Applicant M J Phelps for the Respondent
Judgment:
16 December 2021
JUDGMENT OF GENDALL J
This judgment was delivered by me on 16 December 2021 at 12.30 pm
Registrar/Deputy Registrar Date:
DEPARTMENT OF CORRECTIONS v TURI [2021] NZHC 3488 [16 November 2021]
Introduction
[1] The Chief Executive of the Department of Corrections (the Chief Executive) has applied for an extended supervision order (ESO) in respect of the respondent, Harlem Rawiri Turi (Mr Turi) for a period of three years.
[2]Mr Turi opposes the ESO.
Background
[3] Mr Turi was sentenced to six years and six months’ imprisonment for manslaughter in 2013. The present application for an ESO was made by the Chief Executive on 17 December 2020 while Mr Turi was still subject to release conditions. However, it has been plagued with delays it seems predominantly due to some continued offending on the part of Mr Turi and his refusal to engage with psychological assessments required and the assigned report writers. A timeline of the procedural history is annexed as an appendix to this judgment and may assist to explain why it has taken almost a year for the present application to come to hearing.
[4] The present application has been adjourned multiple times to provide Mr Turi the opportunity to obtain an independent psychological report. Unfortunately that has not been possible. To assist in determining whether an ESO is appropriate the Court has been provided a Health Assessment Report dated 22 September 2020 and an Addendum to that report dated 25 November 2021.
[5] An interim suppression order was imposed by Palmer J in this Court on 16 June 2021.1
Facts
[6] Some background facts relating to Mr Turi’s history are useful. I now set these out, adopting Palmer J’s succinct summary of matters set out in his Interim Supervision Order judgment dated 16 June 2021 at paras 1 – 4.
1 Chief Executive of the Department of Corrections v Turi [2021] NZHC 1429.
[1] “Mr Harlem Turi, aged 40 of Ngati, Kahungunu, has an extensive criminal history dating to 1994, including nearly 50 convictions for assault or other violent offending, resisting police, and breaching release conditions or failing to answer bail. On 20 September 2012, after drinking, Mr Turi and another person, both wearing Mongrel Mob regalia, entered the house of a known small-time drug dealer. Mr Turi assaulted him, fracturing his nose and eye socket and causing profuse bleeding. The victim later died. Mr Turi was convicted of manslaughter and theft. On 13 September 2013, on the basis he was responsible for a reasonably substantial beating, Dobson J sentenced Mr Turi to eight years and three months’ imprisonment for manslaughter and a concurrent sentence for theft.2 The overall sentence was later reduced by the Court of Appeal to six years and six months’ imprisonment.3
[2] On 12 August 2014, in prison, Mr Turi assaulted another prisoner with a broom, punched him repeatedly in the face and head and threw an object at him, resulting in a fracture to his back and numerous facial fractures.4 On 27 February 2015, he was sentenced by the District Court to a further one year and seven months’ imprisonment for injuring with intent to injure.5
[3] On 13 July 2020, Mr Turi was released on parole subject to a variety of conditions. On the day of his release, GPS monitoring indicated he entered a zone he had been prohibited from entering. Corrections says he failed to report to a probation officer weekly from 9 September 2020 and he tested positive for methamphetamine, cannabis and alcohol. GPS monitoring indicated he frequented a known gang residence in Hastings, tenanted by his brother, captain of the Hastings Mongrel Mob, contrary to his release conditions. There were various other breaches of conditions. Corrections applied to recall Mr Turi to prison on 14 September 2020. An interim recall order was made and an arrest warrant issued. Mr Turi was unable to be located until 14 December 2020. By then his sentence had expired.
[4] On 8 January 2021, Mr Turi was convicted and discharged by the Hastings District Court on two breach of release conditions. Following release, he again failed to comply with the original conditions. He was arrested again in Northland in February 2021 and charged with driving offences, resisting and obstructing police, and two breaches of release conditions. In the Whakatane District Court he pleaded guilty and was sentenced to nine months’ imprisonment on 18 February 2021. No special release conditions were imposed …”
Application for an ESO
[7] Turning now to the present application, the Chief Executive applies under s 107F of the Parole Act 2002 for an ESO. This section provides in part:
2 R v Turi [2013] NZHC 2411.
3 Turi v R [2014] NZCA 254.
4 R v Turi [2015] NZDC 3319.
5 At [4]–[5].
107F Chief Executive may apply for extended supervision order.
(1)The chief executive may apply to the sentencing court for an extended supervision order in respect of an eligible offender —
(a)where the offender is subject to a sentence of imprisonment, at any time before the later of —
(i)the sentence expiry date of the sentence to which the offender is subject that has the latest sentence expiry date, regardless of whether that sentence is for a relevant offence; and
(ii)the date on which the offender ceases to be subject to any release conditions; or
(2)An application under this section must be accompanied by a report by a health assessor (as defined in s 4 of the Sentencing Act 2002).
…
[8] The Chief Executive made the present application on 17 December 2020. Mr Turi’s release conditions expired on 25 April 2021. The application was clearly made in time.
Eligible offender
[9] An ESO can only be imposed on an “eligible offender”. Section 107C defines “eligible offender”. This section provides in part:
107C Meaning of eligible offender
(1)In this Part, eligible offender means an offender who—
(a)is not subject to an indeterminate sentence but is a person who has been sentenced to imprisonment for a relevant offence (and that sentence has not been quashed or otherwise set aside) and has not ceased, since his or her latest conviction for a relevant offence (that has not been quashed or otherwise set aside), to be subject to any or all of the following:
(i)a sentence of imprisonment (whether for a relevant offence or otherwise):
(ii)release conditions (whether suspended or not):
(iii)an extended supervision order;
…
[10] Mr Turi is an eligible offender, as he is not subject to an indeterminate sentence, has been sentenced to imprisonment for a relevant violent offence (manslaughter)6 and when the application was made, had not ceased to be subject to release conditions for that offence.
Grounds justifying an ESO
[11] An ESO is intended to protect the community from individuals who pose a real and ongoing risk of committing serious violent offences, following a determinate sentence.7 This Court may make an ESO if, after considering the health assessor’s report, in terms of s 107I(2) of the Parole Act the Court is satisfied:
(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.
[12] The Court may find there is a very high risk an eligible offender will commit a relevant violent offence in terms of s 107IAA(2) of the Parole Act only if it is satisfied that the offender:
(a)has a severe disturbance in behavioural functioning established by evidence of each of the following characteristics:
(i)intense drive, desires, or urges to commit acts of violence; and
(ii)extreme aggressive volatility; and
(iii)persistent harbouring of vengeful intentions towards 1 or more other persons; and
(b)either—
(i)displays behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal; or
(ii)has limited self-regulatory capacity; and
6 Parole Act 2002, s 107B(2A)(e).
7 Section 107(I)(10.
(c)displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.
[13] This has been described by the Court of Appeal as a three-step process where the Court must:8
(a)determine whether the offender has, or has had, a pervasive pattern of serious sexual or violent offending;
(b)make specific findings as to whether the offender meets the qualifying criteria set out in s 107IAA; and
(c)if those criteria are met make a determination about the risk of the offender committing a relevant sexual or violent offence.
[14] Mr Phelps, counsel for Mr Turi, submits that the evidence here does not show Mr Turi has:
(a)an intense drive, desire or urge to commit a relevant act of violence; or
(b)extreme aggressive volatility; or
(c)clear and long-term planning of serious violent offences.
[15] Additionally, Mr Phelps submits that based on all the evidence, the Court cannot be satisfied Mr Turi poses a very high risk of committing a relevant violent offence, and therefore the statutory criteria here is not met.
Analysis
1.Has Mr Turi shown a pervasive pattern of serious violent offending?
[16] Mr Phelps, for Mr Turi, before me accepted that the evidence shows a pervasive pattern of serious violent offending here. Mr Turi’s conviction history as I see it, shows this clear pattern of serious offending, commencing in 1994 with
8 Chief Executive Department of Corrections v Alinizi [2016] NZCA 468 at [13].
aggravated robbery, and continuing with offences for a number of common assaults, robbery with assault, assaulting police, assault with a blunt instrument, injuring with intent to cause grievous bodily harm, three convictions for male assaults female, several convictions for injuring with intent to injure, injuring with intent to cause grievous bodily harm, and manslaughter. The Chief Executive also notes that Mr Turi has been convicted of two other serious and relevant violent offences pursuant to s 107B(2A) of the Parole Act — kidnapping and injuring with intent to cause grievous bodily harm.
[17] The report of the health assessor, Ms Rautenbach, before the Court notes Mr Turi has 97 criminal convictions including 27 violence related convictions, which began when he was aged 14. Some, but not of all of this offending, occurred in a gang context. Since 1998 Mr Turi has largely received imprisonment for his convictions and appears undeterred by these sanctions, demonstrating as the report writer indicates:
A consistent pattern of offending since onset, including offending while in prison and on parole.
[18] I am satisfied overall here that Mr Turi’s conviction history does show a pervasive pattern of serious violent offending.
2.Does Mr Turi meet the qualifying criteria in s 107IAA Parole Act?
[19] Ms Rautenbach, who is a senior registered clinical psychologist, has provided the health assessor’s report which provides background information and goes on to address each of the criteria in s 107IAA. As noted above, to determine there is a very high risk Mr Turi will commit a relevant violent offence, the Court must be satisfied he has a severe disturbance in behavioural functioning, established by evidence of the following traits:
(a)Does Mr Turi have an intense drive, desires, or urges to commit acts of violence?
[20]In her report, Ms Rautenbach says she considers:
There is clear and convincing evidence indicating Mr Turi displays an intense drive, desire or urge to commit a violent offence which could meet the threshold for a relevant violent offence.
[21] She points to the frequency of his violent offending, the young age when he commenced offending, his willingness to offend despite high likelihood of apprehension and prior sanctions, and evidence of his entrenched violence-supported attitudes, all of which she maintains supports her conclusion. Mr Turi’s time in the community has been limited since his late adolescence as he has spent long periods in prison. His custodial history, Ms Rautenbach says, also “provides additional evidence of his pro-violence, pro-violence cognitions and readiness to act upon these”. There is also no evidence that intervention reduced Mr Turi’s risk of violent offending as he completed a high intensity violent offending focused treatment programme in 2003 but has continued to violently offend since on 12 occasions.
[22] In the addendum to her initial report, Ms Rautenbach notes that since August 2020, Mr Turi has continued to have difficulty first, in complying with the law and secondly, with his aggressive behaviours. While he has not been charged with any violent acts during this period Ms Rautenbach does not consider this indicates his risk has diminished. She says he continues to display a “persistent pattern of rule breaking, variable engagement with Corrections and a lack of pro-social goals … and his positive drug test indicates an endurance of his alcohol and drug use, which remains a disinhibiting factor for violence”.
[23] In response, Mr Phelps in his submissions before me accepted the Court might find that Mr Turi may have a desire or urge to commit a violent offence but he notes the test requires an urge to commit a relevant violent offence and he suggests the evidence does not establish that requirement of the test. Mr Turi has committed two relevant offences, kidnapping in 1998 and injuring with intent to cause grievous bodily harm in 2002. These occurred 19 and 23 years ago. Additionally, Mr Phelps says, the circumstances of the relevant offence — manslaughter — are unusual, as he contends Mr Turi in that instance did not commit serious violence against the victim. It is difficult as I see it to accept that contention here. Mr Turi subjected the victim to a significant beating to the head and as Palmer J notes this included “fracturing his nose and eye socket and causing profuse bleeding”. But I do note that the alternative charge
offered at Mr Turi’s trial was injuring with intent to injure which is not a relevant offence. Mr Phelps generally submits here that the evidence does not show a drive to commit a relevant violence offence.
[24] At this point I note the comments of Heath J in this Court in Chief Executive of the Department of Corrections v Wrigley, where he acknowledges: “past behaviour is the best predictor of future behaviour”.9 I do accept here Mr Phelps’ submission that it is necessary to consider whether Mr Turi shows an intense drive to commit acts of serious violence. The report writer concluded that two of the three relevant offences involved serious violence. Although I accept that offending is of some vintage, it does remain relevant to the assessment here, just as the manslaughter charge is relevant. I consider Mr Turi’s extreme violent behaviour, which has not abated despite his lengthy periods of imprisonment, must mean that he does show an intense drive to commit acts of serious violence. This threshold requirement is met.
(b)Does Mr Turi display extreme aggressive volatility?
[25] As to this aspect, I am satisfied the evidence does demonstrate Mr Turi displays regular aggressive volatility, both whilst he is in custody and when he is in the community which on one occasion led to the death of a victim and his manslaughter conviction. There are two patterns to Mr Turi’s aggressive volatility (which she seems to accept is “extreme”) noted by Ms Rautenbach. The first is a willingness to resort to excessive violence and serious assaults with minimal or no provocation. He has pursued victims to continue assaults including, in one case, a passer-by attempting to help. Secondly, according to Ms Roatenbach, Mr Turi has demonstrated “aggressive volatility which escalated to extreme violence in at least two of the three relevant offences … these patterns have been over a prolonged period, as evidenced by Mr Turi’s adjudicated and unadjudicated violence, and appear indicative of a pattern of extreme aggressive volatility …”.
[26] In response, Mr Phelps submits Mr Turi’s history of offending reveals aggressive volatility but not extreme aggressive volatility. He challenges Ms Rautenbach’s conclusion that Mr Turi’s violence was so extreme it caused death.
9 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [40].
He suggests the Court of Appeal indicated Mr Turi’s culpability in that case lay in his punching the victim in the head with a sufficient force to cause non-life-threatening injuries as the deceased had a severely weakened heart. The Court did state “the violence in that case, could not be classified as serious violence of the type where serious injury if not death was a foreseeable consequence”,10 but noted the violence was a serious beating.11 Dobson J in his sentencing notes in the High Court on Mr Turi’s manslaughter charge said that he had inflicted “a reasonably substantial beating to the face of the deceased”. I am satisfied it was without question a part of Mr Turi’s aggressive volatility in the past that has escalated to extreme violence.
[27] The majority of Mr Turi’s offending can be categorised as “reactive violence” and he has demonstrated “violence committed against his partners or other family members, strangers or people unknown to him …”. The fact that two of the three relevant offences involved reactive violence provides clear evidence in my view of extreme aggressive volatility causing serious injury. Mr Turi has persistently used violence in a very wide array of contexts as well. I am satisfied this test is met here too.
(c)Does Mr Turi persistently harbour vengeful intentions to one or more persons?
[28] Turning now to this matter, a literal approach to this particular criterion is not intended.12
[29] Judge Cathcart in the District Court in Chief Executive of Department of Corrections v Broughton summarised this criterion:13
He or she only need to have harboured vengeful intentions even if fleetingly held and experienced persistently in the sense his or her pattern of such thoughts resurface. If the pattern of such thoughts resurface from time to time when a respondent reacts to perceived targets, that is sufficient to meet the requirements of this characteristic. In short, the focus is on whether the respondent persistently experienced thoughts of vengeance when he or she reacts to trigger situations.
10 Turi v R [2014] NZCA 254 at [18].
11 R v Turi [2013] NZHC 2411 at [8].
12 Chief Executive Department of Corrections v Waiti [2019] NZHC 3256.
13 Chief Executive Department of Corrections v Broughton [2021] NZDC 18310 at [33].
[30] In her report, Ms Rautenbach noted Mr Turi showed a need for retribution in previous violent offending and that he harbours vengeful intentions towards people who threaten him, even when they pose little threat. He responds with intense anger escalating to violence if he thinks he has been thwarted or disrespected. Although noting to some degree here there was limited evidence to support this criterion, based on the test from Broughton, Ms Rautenbach concluded there was sufficient information to find Mr Turi demonstrates “persistent experiencing of vengeful thoughts and intentions towards any person he perceives as a target …”.
[31] Essentially, Mr Phelps does not challenge this reasoning and agrees the Court here may well find this particular criterion is met. Based principally on Ms Rautenbach’s assessment, I am satisfied this criterion has been made out.
(d) Is there behavioural evidence of clear and long-term planning on the part of Mr Turi of serious violent offences to meet a pre-meditated goal?
[32] There is mixed evidence here as I see it of Mr Turi planning serious violent offences to meet pre-meditated goals. Ms Rautenbach is unsure if any planning was long-term because of a lack of information about Mr Turi’s planning process in relation to his relevant offences, and the reactive nature of much of his offending. She concludes that Mr Turi has shown some planning but given his impulsivity any planning was likely to be over hours or days, so may not be considered “long-term” for the purposes of this criterion. In response, Mr Phelps contends the short duration of the planning identified by Ms Rautenbach cannot satisfy the Court that there is evidence of clear and long-term planning of serious violent offences to meet a premeditated goal.
[33] In my view Mr Phelps is correct here. There is, as I see it, insufficient evidence for the Court to be satisfied this criterion is met. This however was simply one of two alternative criteria outlined in s 107IAA(2)(a) as I note above. I turn now to consider the alternative criterion.
(e)Does Mr Turi have limited self-regulatory capacity?
[34] Ms Rautenbach, the report writer, clearly articulates limitations Mr Turi faces in his self-regulatory capacity. The reactive nature of much of his offending, coupled with his own admissions that he uses violent offending to regulate his emotions, highlights that “violence is used as a self-regulatory coping strategy for Mr Turi”. Although it appears he may have made some progress in this area during his imprisonment, Ms Rautenbach believes there is clear evidence that “Mr Turi’s self- regulatory capacity remains … unstabled and undeveloped across contacts …”.
[35] In response, again Mr Phelps appears to accept the Court may be likely to be satisfied that Mr Turi has limited self-regulatory capacity.
[36] Again Mr Phelps is to be commended for his concession here. In my view Mr Turi’s pattern of offending, and his inability to remain offence free for any length of time along with all the other factors outlined in Ms Rautenbach’s report is clearly indicative of limited self-regulatory capacity. This criterion is made out.
(f) Does Mr Turi display an absence of understanding for or concern about the impact of his or her violence on actual or potential victims?
[37] High intensity treatment has been provided as I understand it to help Mr Turi understand and develop empathy for his victims. Unfortunately, Ms Rautenbach notes he appears unaffected by this treatment and what she describes as his “lack of concern for his victims … is demonstrated in the callous approach he takes to [them] and the impact of his offending on them, including remaining in his victim’s family exclusion area in breach of his release conditions”. Mr Phelps here in my view again quite properly accepts the Court is likely to be satisfied this criterion is met.
[38] It is clear as I see the position that Mr Turi has little concern about the impact of his violence on victims. It seems he does not take responsibility for any of this offending nor does he have any empathy for his victims. In the pre-sentence report written for Mr Turi’s manslaughter sentencing, the report writer noted Mr Turi made light of his responsibility for the victim’s death on the basis a normal man would have survived the assault, an assault which has been described as a significant beating
administered with behaviour that can only be described as quite callous. I find this criterion has also been met.
3. Is there a very high risk that Mr Turi will in future commit a relevant violent offence?
[39] Even if Mr Turi meets all the criteria under s 107IAA, this Court must still make a separate and independent determination as to whether there is, in fact, a very high risk that he will commit a relevant violent offence. As part of the health assessor’s report, various actuarial instruments and clinical risk factors were evaluated to assess Mr Turi’s risk of further violent offending. These measures assess static and dynamic risk factors. The RoC*Rol measure, which assesses static predictors of reoffending based on criminal history, according to Ms Rautenbach’s evidence under cross- examination from Mr Phelps, is .85442 which qualifies him in the very high risk category under this instrument indicating a high likelihood of imprisonment within five years of release.
[40] The Violence Risk Scale (VRS) assesses the probability of violent re-offending based on static and dynamic risk predicators. Mr Turi was assessed as being in the high end of the high-risk category for future offending on the VRS.
[41] Mr Turi was also assessed the Psychopathy Checklist — Short Version (PCL– SV) which provides an estimate of the risk of serious re-offending with a focus on factors relating to anti-social personality and previous criminal behaviour which are often associated with serious recidivism. High scores on the PCL-SV assessment it is said are highly predictive of serious violent offending. Mr Turi’s score was well above the average for New Zealand offenders and indicated a very high risk of serious re-offending within five years of release. His total score was in the 100th per centile for the measure’s forensic/non-psychiatric validation population. Seventy to eighty per cent of those with equivalent scores in the validation study were imprisoned for serious and often violent offending within five years of release. Before me Mr Phelps did acknowledge that Mr Turi’s PCL-SV score placed him within a range where he is at very high risk of serious re-offending, including for a serious violent offence, but he tried to question whether this might be a “relevant violence offence”.
[42] But, based on the actuarial instruments and the surrounding evidence, Ms Rautenbach concluded and confirmed, particularly in cross-examination before me, that Mr Turi had a high and probably very high risk of committing a further relevant violent offence in the immediate future. She noted clinical factors including his high rate of prison misconducts, his institutional violence and his relevant offence convictions could increase what might be seen as simply a high risk to a very high risk in any proper consideration of all factors. In the conclusion to her written report Ms Rautenbach also stated:
Based on a multi-method assessment Mr Turi is considered to be at high risk for violent re-offending. However, in my clinical opinion, given specific idiosyncratic and environmental factors, Mr Turi’s risk will escalate quickly to very high risk of further violent offending, which could escalate to a level of seriousness indicative of relevant offending …
[43] Conversely, Mr Phelps in his response highlights that Mr Turi has not been convicted of a violent offence since 2015 and has not been convicted of violent offending since his recent release from prison. Mr Phelps contends the Court should struggle to be satisfied Mr Turi is a very high risk of committing a relevant violent offence.
[44] On this aspect Mr Phelps refers to the decision of this Court in Chief Executive Department of Corrections v Gray where Isac J held:14
I note that on a review of the psychologist’s report filed in support of the ESO, it does not appear that the test in s 107I(2)(b)(ii) has been met, in that the report writer does not appear to conclude that there is a very high risk Mr Gray will in future commit a relevant violent offence.
[45] Mr Phelps argues, that like the present case, the report writer in Gray concluded that Mr Gray was only at high risk of violent re-offending but if certain other factors arose, that risk might be elevated somewhat to very high. In Gray Isac J held that because the report writer had not assessed there was in fact a high risk of those factors arising, and without them the risk did not meet the statutory test, therefore there was not enough evidence before him on which to base an order.
14 Chief Executive Department of Corrections v Gray [2021] NZHC 392 at [5].
[46] On this aspect, it clear from Ms Rautenbach’s evidence in particular given on cross-examination relating to his very high risk RoC*Rol category and her comments regarding both environmental factors and idiosyncratic or internal factors affecting Mr Turi that he was trending very much to being at a very high risk of violent re- offending and is certainly prone to escalation with limited provocation. As I have noted above, Ms Rautenbach’s initial written report concluded generally that Mr Turi’s risk factor for violent offending was at least high and likely to escalate to very high quickly given his personal factors and in a community environment. In this respect, Ms Rautenbach gave her conclusion as the health assessor that “given specific idiosyncratic and environmental factors Mr Turi’s risk will escalate quickly to very high risk of further violent offending which could escalate to a level of seriousness indicative of relevant offending …”. I agree with this indication that Mr Turi is likely, at certain periods, to be at very high risk of serious violent offending and indeed this would amount to relevant violence offending. This is because the environmental factors which escalate Mr Turi’s risk are likely to occur. Mr Turi has shown a clear willingness to resort to violence against people that are both known, and unknown to him, wherever he perceives a “physical or emotional threat/challenge”. This assessment as I have noted was heightened in the evidence Ms Rautenbach gave before me by way of cross-examination and re-examination.
[47] Of further concern is the observation in the health addendum that Mr Turi tested positive for cannabis, alcohol, amphetamine and methamphetamine. In her original report Ms Rautenbach concluded “there is an association between Mr Turi’s violent offending and his substance use, in particular this may increase the extremity of violence committed”. She said too his offending history includes “chronic substance abuse”. The predominant pattern of Mr Turi’s violence is reactive and in my view it is likely to escalate quickly to a very high risk of further violent offending, without much prompting. It seems also that Mr Turi has not had sustained periods of time where he was violence free.
[48] On these aspects it is also apparent that, despite many efforts to have Mr Turi engage with report writers and others here, he has simply refused. In addition, despite encouragement and time being made available for Mr Turi to obtain his own psychological assessment, he has simply ignored opportunities to do so.
[49] I accept that in broad terms as the Court of Appeal observed in Chisnall v Attorney General,15 the ESO regime is penal in nature and in a way might be seen as a second penalty such that a conservative approach to all the issues to be addressed is required. Notwithstanding this, and particularly taking into account all the factors I have noted and the evidence before me, I am satisfied the statutory test of there being a very high risk that Mr Turi will in future commit a relevant violent offence has been met here. The safety of the community and the threat which he poses is such that the protection of an ESO is required.
Discretion not to make an ESO
[50] Although the Court is not required to make an ESO even if, as I have found, the criteria outlined above are met, it is exceptional not to make an order in those circumstances.16
[51] Mr Phelps suggests however that this is such an exceptional case, as the s 107IAA(2) factors if found to be present, are only present to a high degree given the vintage of Mr Turi’s truly violent relevant offences. Accordingly, he suggests Mr Turi is simply a high risk here rather than a very high risk of further violent offending. I disagree however. This is not an exceptional case which warrants a refusal to grant an ESO. For the reasons I have outlined above I agree with Mr Blaschke, for the Chief Executive, that the criteria are properly made out, and the ESO order sought here is required, and needs to be made.
[52] In his submissions on this aspect, Mr Blaschke has made certain comments which are usefully repeated:
[39] [Mr Turi] has a history of offending shortly after being released or ending a sentence, with the longest time in the community free of offending or non-compliance being three months. That pattern has repeated itself since [Mr Turi’s] release.
[40] The reality for [Mr Turi] of the sheer length of time he has spent in prison, and the extent to which his institutionalisation may drive his continued non-compliance, is reflected in the shorter three-year term sought. If [Mr Turi] is able to stabilise his compliance and avoid violent offending (whether relevant offending or not), over that time period, that will be strong evidence
15 Chisnall v Attorney-General [2021] NZCA 616.
16 Chief Executive of Department of Corrections v Popata [2017] NZHC 2343 at [57].
that he has reduced his very high risk of further relevant offending. In terms of the exercise of discretion, in a way, the structure and support provided by the oversight on an ESO may in fact provide a way by which [Mr Turi] can reintegrate back into the community safely”.
I endorse these remarks.
Appropriate length of an ESO
[53] Section 107I requires the term of an ESO be “the minimum period required for the purposes of the safety of the community in light of …” 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.17
[54] The term of an ESO does not need to be proportionate to the offences committed but is concerned with managing the risk of future offending. However, “the likely seriousness of future offences is usually best predicted by reference to past behaviour”.18
[55] In Moeke v Chief Executive of the Department of Corrections the Court of Appeal outlined the materials which should be placed before a Court invited to make an ESO including “a section in the psychological report that addresses fully the minimum term sought for the particular offender against the s 107I(5) criteria”.19 Neither the original health assessor’s report, nor the addendum, have provided information to the Court as to why the three year term proposed is appropriate here.
[56] Nevertheless, on the basis an ESO is to be ordered, Mr Phelps went on in his submissions, although opposing an ESO, to accept that, if one was to be ordered, a three-year period was appropriate. This conclusion was reached as:
(a)Mr Turi is enjoying some stability in his life it seems in Hawkes Bay currently, and his release plans are more suitable than have been previously;
17 Parole Act s 107I(5).
18 R v Peta [2007] NZCA 28 at [10].
19 Moeke v Chief Executive of the Department of Corrections [2010] NZCA 60 at [29].
(b)he says Mr Turi is largely compliant with his sentence, he has engaged with his probation officer and indicated a willingness to engage in ongoing treatment;
(c)although there have been some reports of verbal aggression since the health assessor’s report, Mr Turi it seems has not violently offended;
(d)the lack of violent offending since his release may indicate some cautious optimism about the treatment Mr Turi received while imprisoned;
(e)Mr Turi’s conduct in prison should be understood in the context that he is institutionalised, and behaviour can be a protected mechanism; and
(f)with the oversight of an ESO Mr Turi’s risk is likely to be no more than high rather than very high.
[57] In the circumstances here, having regard to all the evidence in this case and noting too the comments I outline at [52] above, I am satisfied that a three year ESO is an appropriate term and the minimum period required here, taking into account the level of risk Mr Turi poses, the seriousness of the harm he may cause and the likely duration of the risk.
Result
[58] For all the reasons I have outlined above, the application by the Chief Executive for an ESO succeeds.
[59]I now make the following orders:
(a)An extended supervision order is made in relation to Mr Turi in terms of s 107I of the Parole Act 2002 with a term of three years.
(b)The order is to come into force today, 16 December 2021.
(c)Standard conditions of an ESO outlined in s 107J of the Parole Act 2002 are to apply.
(d)In addition to those standard ESO conditions, Mr Turi is:
(i)to reside at an address approved in writing by a Probation Officer, and not move from that address unless he has the prior written approval of a Probation Officer;
(ii)not to contact the family members of the victims of the 2012 offending;
(iii)not to possess, use, or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed to him by a health professional;
(iv)not to communicate or associate with his co-offender, Desmond Leaf, directly or indirectly, unless he has the prior written approval of a Probation Officer; and
(v)not to have contact with any person(s) who are members or associates of the Mongrel Mob except for immediate family members, unless he has prior written approval of a Probation Officer.
Gendall J
Solicitors:
Elvidge & Partners, Napier
Barrister:
M J Phelps Barrister, Hastings
Appendix:
Timeline
13September 2008 Sentenced to eight years and three months’ imprisonment on manslaughter charges.
18 June2014 Court of Appeal reduce sentence to six years and six months’ imprisonment.
27 February 2015 Sentenced on separate charges of injuring with intent to injure to one year seven months’ imprisonment, cumulative on his manslaughter sentence.
13 July 2020 Released on parole with release conditions set to expire on 25 April 2021.
14 September 2020 Recall application due to Mr Turi’s complete non-compliance with parole conditions, an interim recall order made, and arrest warrant issued.
14 December 2020 Mr Turi located, but underlying sentence period had expired. Sentenced to a short prison sentence for breach of release conditions. Released soon after and again absconded.
17 December 2020 Application by Chief Executive for an ESO.
18 February 2021 Charged with driving while disqualified, failing to stop, obstructing and resisting police, and further release condition breaches, application for ESO set down for 18 June.
4 June2021 Mr Phelps, for Mr Turi sought an adjournment as Mr Turi refused to engage with Corrections’ psychologist, and the independent psychologist engaged by Mr Turi could no longer assist. Mr Blaschke, for the Chief Executive, consented to the
adjournment. Palmer J adjourned the hearing accordingly but arranged that the hearing time be used to deal with the application for an ESO.
16 June2021 Mr Turi released from prison and made subject to an ISO, application for ESO set down for hearing on Monday 18 October.
13 October 2021 Edwards J allowed an adjournment for the ESO hearing based on the failure to prepare a psychological assessment due to delays caused by COVID-19 and because Mr Turi could not be located, (although he has recently been located). Edwards J felt an independent psychologist report was important to the Court’s assessment required by the legislation as Mr Turi did not engage with Corrections’ health assessor. She set down the application for 8 December 2021 but held that if no psychological assessment was available by that date the hearing must proceed.
27 October 2021 A memorandum was filed by Mr Blaschke updating the Court that Mr Turi had disengaged with his probation officer and was no longer residing at the specified address. He was also facing further charges of driving while disqualified and breaching release conditions.
25 November 2021 An Addendum Health Assessment was provided to the Court by Corrections.
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