Meads v Muldrew - [2021] NZHC 3184

IDENTIFYING DETAILS OF ONE VICTIM HAVE BEEN REDACTED

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2015-409-000038

[2020] NZHC 3184

BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant

AND

LLOYD ALEXANDER McINTOSH

Respondent

Hearing: 18-19 November 2020

Appearances:

C J Boshier for Applicant A J Bailey for Respondent

Judgment:

3 December 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 3 December 2020 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date…3 December 2020

Introduction

[1] The respondent, Lloyd McIntosh, is 47 years old. He committed serious sexual offences against young and vulnerable people in his youth for which he was imprisoned. On his release from prison in 2004 the Chief Executive of the Department of Corrections applied to make him subject to an extended supervision order (ESO).

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v McINTOSH [2020] NZHC 3184
[3 December 2020]

Mr McIntosh has now been subject to an extended supervision order (ESO) since 2005.1

[2] The statutory regime in the Parole Act 2002 (the Act) requires this Court to review the imposition of an ESO 15 years after the date on which the first ESO was made and, thereafter, five years after the imposition of any and each new ESO.2 Mr McIntosh is now the subject of such a review which appears to be the first such review of an ESO to be conducted under s 107RA of the Act.3

[3] On review this Court must determine whether there is a high risk that Mr McIntosh will commit a relevant sexual offence within the remaining term of the ESO.4 Following its review, this Court must either confirm the ESO or cancel it.5

[4] The risk of committing a relevant sexual offence must be assessed on the basis of the matters set out in s 107IAA(1).6 That section provides as follows:

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:

1      An ESO was imposed by the High Court in Chief Executive of Department of Corrections v McIntosh HC Christchurch CRI-2004-409-000162, 8 December 2004 and again by the High Court in Chief Executive Department of Corrections v McIntosh [2015] NZHC 999.
2      Parole Act 2002, s 107RA(2).
3      As Mr McIntosh was the first person to have an ESO imposed, it follows that he is almost certainly the first to undergo a s 107RA review, notwithstanding the fact his ESO has been suspended for two brief periods of imprisonment.
4      Parole Act,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Meads v Muldrew

Details

AGLC: Meads v Muldrew [2020] NZHC 3184
Case: [2021] NZHC 3184
Decision Date: 3 December 2020

CaseChat Overview and Summary

Lloyd McIntosh is a 47-year-old man who has been subject to an extended supervision order (ESO) since 2005, following serious sexual offences against young and vulnerable people. The Chief Executive of the Department of Corrections applied to make McIntosh subject to an ESO. The statutory regime in the Parole Act 2002 requires the Court to review the imposition of an ESO 15 years after the date on which the first ESO was made and, thereafter, five years after the imposition of any and each new ESO. The Court must determine whether there is a high risk that McIntosh will commit a relevant sexual offence within the remaining term of the ESO. Following its review, the Court must either confirm the ESO or cancel it. In this case, the Court found that McIntosh is still at high risk of relevant sexual offending, and therefore the ESO was confirmed for the balance of the five-year period.

The court considered the evidence of two health assessors, Ms Amanda Richards and Mr Craig Prince, who both concluded that McIntosh met all four criteria for being at high risk of sexual offending, but disagreed on whether the ESO should be cancelled. The court found that McIntosh displays an intense drive, desire, or urge to commit a relevant sexual offence, has a predilection or proclivity for serious sexual offending, has limited self-regulatory capacity, and demonstrates either a lack of acceptance of responsibility or remorse for past offending, or an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims. The court also found that McIntosh is at high risk of committing a relevant sexual offence, as all four criteria were met. However, the court exercised its discretion to confirm the ESO, as there was no specific proposal before it which would bridge the gap between McIntosh's current level of supervision and his potential release into the community without significant individualised support.

The court acknowledged that McIntosh is being given virtually no opportunity to demonstrate that he has learned from the extensive therapy he has engaged in and to practice being more independent. The court considered it imperative that McIntosh be given more opportunities to do things independently and without constant supervision, as it is only by doing that, that McIntosh can hope to demonstrate he no longer requires the high level of supervision which an ESO requires. The ESO regime, including the regular statutory review of the ESO, anticipates that ESOs will not endure for longer than necessary. It is incumbent on those supervising McIntosh that they help him towards that goal as far as practicable.

Orders