THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS, ARA POUTAMA AOTEAROA AND WILLIAM SPRING TAWHAI
[2024] NZHC 2647
•12 September 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-000098
[2024] NZHC 2647
UNDER the Parole Act 2002 IN THE MATTER
of an application for an extended supervision order
BETWEEN
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS, ARA POUTAMA AOTEAROA
Applicant
AND
WILLIAM SPRING TAWHAI
Respondent
Hearing: 12 September 2024 Appearances:
P A Currie for Applicant
M T Dempsey for Respondent
Judgment:
12 September 2024
REASONS JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS, ARA POUTAMA AOTEAROA v TAWHAI [2024] NZHC 2647 [12 September 2024]
[1] This morning I made an order granting the application of the Chief Executive of the Department of Corrections (Chief Executive) for an extended supervision order (ESO) for a term of five years. I now set out my reasons.
The application
[2] In May 2022, William Tawhai was sentenced to preventative detention with a minimum period of five years’ imprisonment1. This followed his guilty pleas to charges of assaulting a person in a family relationship2 and of wounding with intent to injure.3 He successfully appealed and was sentenced to three years’ imprisonment with a minimum period of imprisonment of two years.4 Mr Tawhai was released from prison on 10 January 2024. His sentence expired on 10 July 2024. On 13 June 2024 Mander J made an interim supervision order (ISO).5 The Chief Executive now seeks an ESO.
[3] Yesterday, Ms Dempsey, gave formal notice on behalf of Mr Tawhai that he does not oppose the application or the proposed five-year term. Mr Tawhai confirmed that to be the position. He accepts the statutory grounds for an ESO are satisfied. It is nevertheless necessary for the Court to be satisfied that an order should be made.6 However, I agree with Cooke J’s observation in The Department of Corrections v Mist7 that when there is consent to ESO, of relevance is the fact the person the subject of the application appreciates the measures sought to be imposed are to their ultimate benefit.
[4] Ms Currie for the Chief Executive made brief submissions in support of the application. The Chief Executive relies on the report of clinical psychologist, Dr Bridget Fink, dated 22 March 2024. Dr Fink opines that Mr Tawhai meets the statutory criteria for the imposition of an ESO, however it is for the Court to make its own assessment of all relevant factors.
1 R v Tawhai [2022] NZHC 998.
2 Crimes Act 1961, s 194(a). Maximum penalty — two years’ imprisonment.
3 Section 188(2). Maximum penalty — seven years’ imprisonment.
4 Tawhai v R [2023] NZCA 444.
5 Chief Executive of the Department of Corrections v Tawhai [2024] NZHC 1558.
6 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006 at [32]; R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [7].
7 Department of Corrections v Mist [2022] NZHC 2178 at [10].
[5] I have also had the benefit of hearing directly from one of Mr Tawhai’s victims, a former partner who provided a considered and insightful statement in support of the Chief Executive’s application.
Discussion
[6] There is no dispute Mr Tawhai is an “eligible offender” under s 107C of the Parole Act (the Act). He has been convicted of three relevant violent offences.
[7] The Court of Appeal in Chief Executive of the Department of Corrections v Alinizi8 confirmed a three-step process is to be engaged in considering whether an eligible offender should be made subject to an ESO:9
(i)the Court must determine whether the offender has, or has had, a pervasive pattern of serious sexual or violent offending;
(ii)the Court must make specific findings as to whether the offender meets the qualifying criteria set out in s 107IAA; and
(iii)if those criteria are met the Court must make a determination about the risk of the offender committing a relevant sexual or violent offence.
Pervasive pattern of serious violent offending
[8] It is not suggested that Mr Tawhai meets the threshold for a pervasive pattern of serious sexual offending. He has a single relevant conviction for a sexual offence.
[9] Mander J helpfully summarised Mr Tawhai’s history of violent offending when granting the ISO. I adopt that summary:10
[8] Mr Tawhai’s criminal history spans some 39 years. His offending commenced when he was a young person. He is now aged 57. Mr Tawhai was first arrested for a violent offence (common assault) when aged 15 years. He was convicted of four subsequent charges of common assault between 1983 and 1996. His documented history of interpersonal violence commenced that year and has persisted through to the offending to which his present sentence relates, which occurred in 2020, being some 24 years. His record of interpersonal violence includes convictions for wounding with intent to injure (x 1), wounding with intent to cause grievous bodily harm (x1), threats to kill or cause grievous bodily harm (x2), assault on a person in a family relationship
8 Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468.
9 At [13].
10 Above n 5 at [8] –[9].
(x 3), aggravated assault (x1), assault with intent to injure (x 2), male assaults female (x 5), common assault (x 1), and assaulting a person with a blunt instrument (x 1). Mr Tawhai has also been convicted of sexual offending against a female partner, and has additional convictions for related offending which include for contravening protection orders, escaping prison, possession of a weapon, and assaulting police who have attempted to intervene.
[9] The victims of Mr Tawhai’s interpersonal violence offending are women with whom he was in a relationship. That offending has involved the infliction of serious injuries. As noted, it extends to sexual violence. Mr Tawhai’s most recent offending was against his partner of one year. It included punching the victim multiple times and verbally abusing her while she was driving, grabbing her clothing to prevent her escape, pulling her hair to get her out of a car, and continuing to punch her, and threaten her. Her injuries included a fractured eye socket and finger, a broken tooth, incontinence, bruising and swelling to her head, torso and legs.
[10] I am satisfied that Mr Tawhai’s criminal history does demonstrate a pervasive pattern of serious violent offending against intimate partners.
Qualifying criteria in s 107IAA
An intense drive, desire or urge to commit acts of violence
[11] Dr Fink considers Mr Tawhai’s offence history is consistent with an intense drive, desire, and urge to commit violent offences against intimate partners. I agree. His history spans an extended period of 24 years. Mr Tawhai is described as engaging in victim blaming, denial, justifications, and entitlement. Dr Fink considers Mr Tawhai experiences urges to act violently towards intimate partners. She provides as an example his rapid reoffending following release from prison and his offending while on sentence.
[12] Previous sanctions and attempts to intervene directly during interpersonal violence incidents have been ineffective. Mr Tawhai has not made treatment gains. His mood and behaviour may become erratic when his sense of self is challenged, or he does not get his own way. These factors led Dr Fink to opine that the intensity of Mr Tawhai’s drives, urges and possible desires to commit relevant violent offences against partners do not appear to be mitigated. There is no evidence he has engaged in an intimate relationship that does not involve interpersonal violence since the 1990s.
Extent to which the offender displays extreme aggressive volatility
[13] Mr Tawhai has a prolonged history of displaying extreme aggressive volatility against intimate partners. That volatility is said by Dr Fink to be quite disproportionate to the trigger. For example, Dr Fink refers to violence inflicted when a victim declines to go for a walk or fails to make a meal for Mr Tawhai. Volatility is reflected in a pattern of Mr Tawhai targeting his assaults on the face and upper body of his victims with the potential for serious and possibly fatal consequences. There is little doubt that Mr Tawhai displays extreme aggressive volatility.
The extent to which the offender has persisted in harbouring of vengeful intentions to one or more persons
[14] Dr Fink reports Mr Tawhai’s offending history has involved a pattern of holding vengeful ideations and intentions towards victims. She observes his offending has included gaps between the emotional trigger and offending, as well as sustained sexual offending over a 24-hour period.
[15] Dr Fink says the duration and intensity of Mr Tawhai’s offending suggests the presence of persistent vengeful intent and possible enjoyment of pain or humiliation experienced by the victim, even after his initial anger had subsided. She opines Mr Tawhai’s personality functioning, offence-supported attitudes and attitudes towards women are also consistent with potential for harbouring vengeful ideations towards intimate partners. Mr Tawhai presents with a grandiose personality style and entitled attitudes that Dr Fink says are likely to impact his expectations from intimate partners. He is prone to emotional dysregulation when those expectations are not met, and projects blame onto others. His personality functioning limits his ability to accept responsibility for his actions and instead perpetuates condoning his actions.
[16] Dr Fink records Mr Tawhai’s self-reporting that he has offended against the same victim multiple years apart, at least in part due to the same feelings of jealousy emerging. She says this adds support to her opinion that Mr Tawhai has persistent harbouring of vengeful intentions. I accept Dr Fink’s opinion.
Any behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal
[17] There is insufficient evidence to suggest Mr Tawhai engages in instrumental, planned, or calculated violence towards partners or others. His offending, even over a sustained period, comprises more impulsive or reactive violence, and his main pathway towards violence is described as appearing to be reactive. There is limited evidence that his violence is organised or planned.
Offender’s self-regulatory capacity
[18] Dr Fink says Mr Tawhai has demonstrated capacity to self-regulate within the protected and highly structured environment of the prison setting. He adheres to rules and regulations and is described as polite and appropriate in his interactions with others. He has maintained employment within the prison setting.
[19] Otherwise however, Dr Fink is of the view Mr Tawhai has demonstrated limited capacity for self-regulation. He has a personality style consistent with vulnerability to quick shifts in mood contingent on how others feel to him and whether he feels his needs are met. When triggered, Mr Tawhai reacts with violence that might be considered disproportionate to achieve the desired outcome. His violence has been difficult to regulate once activated.
[20] I agree with Dr Fink’s conclusion that Mr Tawhai has serious difficulties with emotional regulation and behavioural control when faced with interpersonal stresses but that his capacity for general self-regulation improves with structure and monitoring.
Offender’s understanding for or concern about the impact of his violent offending on actual or potential victims
[21] Dr Fink reports that Mr Tawhai has “verbalised superficial acceptance of responsibility and remorse”. She considers Mr Tawhai’s self-report as to the impact of his offending is largely self-focused. His responses were considered to be vague and lacking depth when questioned about the impact of his offending on his victim. He remains untreated despite the opportunities to participate in offence-focused
treatment. His history of rapid reoffending is inconsistent with self-reported claims of an acceptance of responsibility.
[22] Mr Tawhai’s former partner and the victim of his most recent offending emphasised in her submission her belief that Mr Tawhai demonstrates no remorse for his offending beyond a sense of sadness for his own loss and for his own grandchildren.
Risk of committing a relevant violent offence in future
[23] In Dr Fink’s opinion, Mr Tawhai presents as having a very high risk of committing a future relevant violent offence in the absence of additional supervision and support in the community. In her clinical opinion Mr Tawhai has demonstrated an intense drive, desire and/or urge to offend violently against intimate partners. On at least one occasion that has escalated to include sexual violence. He has demonstrated a pattern of engaging in extreme aggressive volatility, as well as some offending consistent with harbouring vengeful thoughts towards others.
[24] It is Dr Fink’s opinion that these patterns have persisted across time and involved a number of intimate partners. Dr Fink considers Mr Tawhai’s pattern of interpersonal violence offending to be consistent with reactive violence, suggesting he has difficulty with self-regulation when not in a structured environment.
[25] Whilst Dr Fink considers there to be insufficient evidence to suggest that he has engaged in planned or premeditated violence, she does consider that once activated Mr Tawhai may engage the proximal planning to permit prolonged offending as was the case when he sexually offended. He is assessed as having not yet demonstrated genuine concern for the impact of his violent offending.
[26] I concur with Dr Fink’s overall risk assessment. It is strongly supported by Mr Tawhai’s criminal history and the prolonged pattern of violence committed against intimate partners.
[27] Having closely considered the report of Dr Fink, Mr Tawhai’s criminal history, the submissions advanced by Ms Currie on behalf of the Chief Executive and from
Mr Tawhai’s former partner, and acknowledging that Mr Tawhai does not oppose the making of an ESO, I am satisfied that the statutory grounds for an ESO are made out.
Term of extended supervision order
[28] The Chief Executive seeks a term of five years. The maximum term is one of 10 years.11
[29] Dr Fink reports that Mr Tawhai’s risk of relevant violent offending is considered to endure based on his history of offending, his entrenched offence-supported beliefs and his enduring personality characteristics that are associated with recidivism. He presents with many dynamic risk factors including release planning that is not assessed as sufficient to mitigate the risk of his future offending.
[30] I am satisfied that a five-year period is required to meet the statutory purposes of the safety of the community, having regard to the risk Mr Tawhai poses, the harm that he might cause to victims and the likely duration of the risk.12
Result
[31] I make an extended supervision order in respect of Mr Tawhai for a period of five years. Ms Currie informed the Court Mr Tawhai is presently remanded in custody, having recently been arrested in relation to a matter quite unrelated to the present application. Consequently, the ESO will commence on the date of Mr Tawhai’s release from custody.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
A C Cresswell, Barrister, Auckland
11 Parole Act 2002, s 107I(4).
12 Section 107I(5).
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