Waho v Chief Executive of the Department of Corrections
[2025] NZCA 396
•11 August 2025 at 2.15 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA167/2024 |
| BETWEEN | KAELMN JOHNATHAN JAMES WAHO |
| AND | CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS |
| Hearing: | 25 March 2025 |
Court: | Palmer, Brewer and Gault JJ |
Counsel: | K M Barker for Appellant |
Judgment: | 11 August 2025 at 2.15 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Palmer J)
Mr Kaelmn Waho received three relatively long term sentences of imprisonment for violent offending in 2009, 2013 and 2021.[1] In March 2024, in the High Court at Dunedin, Harland J imposed on him an extended supervision order (ESO) for five years under the Parole Act 2002 (the Act).[2] Mr Waho appeals on the ground that one of the required statutory criteria for imposition of the ESO, that he persistently harboured vengeful intentions towards one or more persons, was not fulfilled.[3] We hold that it was fulfilled because his offending in 2009 and 2013, backed up by expert evidence from a health assessor, and more recent threats, constitute evidence of Mr Waho’s persistent hostile rumination with feelings of jealousy and anger and subsequent acting out of vengeful intention. The appeal is dismissed.
What happened?
The offending
[1]R v Waho DC Nelson CRI-2009-042-1108, 5 May 2009 [2009 sentence]; R v Waho DC Nelson CRI‑2013‑042‑1355, 5 September 2013 [2013 sentence]; and R v Waho [2021] NZDC 9650 [2021 sentence].
[2]Chief Executive, Department of Corrections v Waho [2024] NZHC 471 [results judgment]; and Chief Executive, Department of Corrections v Waho [2024] NZHC 500 [reasons judgment].
[3]Parole Act 2002, s 107IAA(2)(a)(iii).
Mr Waho, now aged 34, had a dysfunctional upbringing, witnessing family violence, being abused, leaving school after year nine, starting to smoke cannabis at 13, binge drinking by 16, and trying methamphetamine.[4] Mr Waho has 49 convictions, at least 18 of which are for violent offences, including resisting police in 2020, assault with a weapon in 2021 and three episodes of offending for which he received three relatively long-term sentences of imprisonment:
(a)In 2009 at the age of 17, Mr Waho saw an unknown man talking to his then‑partner, punched him once in the face, threatened to stab him, and accused his partner of sleeping, talking and flirting with the man.[5] After travelling home with her, he hit his partner over the head, hard from behind, with a bottle, called her “a slut” and “a hoe”, and punched her in the face four times.[6] He was sentenced in the District Court to four years’ imprisonment for wounding with intent to cause grievous bodily harm, two offences of male assaults female, threatening to do grievous bodily harm, injuring with intent to injure with reckless disregard, and common assault.[7]
(b)In May 2013, around three months after being released from prison and at the age of 21, after an incident with a second partner, Mr Waho appeared to get angry as a result of jealousy and punched her in the face.[8] The next day, while Mr Waho was drinking with her and others, and smoking cannabis, her father called to enquire about her well-being, aggravating Mr Waho. After they got back to the place they were staying, he threatened her with a kitchen knife in front of others including children. She curled herself into a foetal position as Mr Waho stood over her, stabbed her in the abdomen, and punched her in the same area five times.[9] She required surgery and intensive hospital care.[10] In September 2013, Mr Waho was sentenced to six years and six months’ imprisonment for wounding with intent to cause grievous bodily harm and male assaults female.[11]
(c)Eleven days after being released from prison, in September 2020 at the age of 29, after using methamphetamine, Mr Waho stole a car and petrol, and was pursued by police.[12] Later, he cut off someone else in a car, punched them in the face, took their car and was again pursued by police.[13] Mr Waho crashed the car, pulled a driver forcibly from another car and drove off, hitting a detective’s car in the process. When caught, he punched a constable in the face, knocking him to the ground.[14] In May 2021, Mr Waho was sentenced to three years’ imprisonment after being convicted of aggravated assault, two offences of robbery, aggravated injury, theft, wilful damage, unlawfully taking a motor vehicle, two offences of driving dangerously, driving under the influence of a drug, three offences of operating a motor vehicle recklessly, three offences of failing to stop, and four offences of breaching release conditions.[15]
[4]Reasons judgment, above n 2, at [9]–[12].
[5]2009 sentence, above n 1, at [5]–[8].
[6]At [9]–[13].
[7]At [57]–[61]. He was also re-sentenced for two assaults arising from a separate incident following an application to cancel and substitute the sentence: at [39]–[45].
[8]R v Waho DC Nelson CRI-2013-042-1355, 3 September 2013 [2013 sentence indication] at [2]. Mr Waho pleaded guilty following the sentence indication, which was then explicitly incorporated into his sentence: see 2013 sentence, above n 1, at [2].
[9]2013 sentence indication, above n 8, at [2]. We note there is a discrepancy between the 2013 sentence indication and the offending as described in a health assessor’s report (purported to be on the basis of the police summary of facts) which states that the punch to the face occurred a few days prior to the subsequent events.
[10]At [3].
[11]2013 sentence, above n 1, at [7].
[12]R v Waho DC Christchurch CRI-2020-009-7417, 21 December 2020 [2021 sentence indication] at [2]–[4]. Mr Waho pleaded guilty following the sentence indication, which was then explicitly incorporated into his sentence: 2021 sentence, above n 1, at [6].
[13]2021 sentence indication, above n 12, at [5].
[14]At [6].
[15]2021 sentence, above n 1, at [10]–[20]. He was also re-sentenced in respect of a breach of release conditions, and disqualified from driving for 21 months.
While in custody, the Department of Corrections | Ara Poutama Aotearoa (Corrections) reports that Mr Waho was cited for 16 incidents of misconduct, nine of which refer to some form of threatening behaviour, verbal abuse and/or physical aggression.[16] These included knocking out a pane of glass in the visiting hall and throwing it towards a staff member; throwing a chair in the direction of a Corrections officer; punching an officer in the head and throat, and punching other officers who tried to restrain him. Mr Waho denies the latter occurred and states charges against him were dropped.[17] In prison, Mr Waho had a high-risk security classification and was placed in segregation units.
Law of extended supervision orders
ESOs in general
[16]Reasons judgment, above n 2, at [18].
[17]At [20].
Section 107I of the Act empowers a sentencing court to impose an ESO for up to 10 years when certain conditions are met. Under s 107I(1), the purpose is to protect members of the community from those who, having received a determinate sentence, “pose a real and ongoing risk of committing serious sexual or violent offences”. Under s 107I(2)(a) and (b)(ii), relevantly, the court must be satisfied, having considered a health assessor’s report, that the offender “has, or has had, a pervasive pattern of serious … violent offending” and “there is a very high risk that the offender will in future commit a relevant violent offence”.
Section 107IAA(2) provides, relevantly:
(2)A court may determine that there is a very high risk that an eligible offender will commit a relevant violent offence 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
(c)displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.
In determining whether an ESO is made, a court must: determine whether the offender has, or has had, a pervasive pattern of serious violent offending; make specific findings as to whether they meet the qualifying criteria in s 107IAA; and if so, determine the risk of the offender committing a relevant violent offence.[18]
[18]Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].
In 2024, in Attorney-General v Chisnall, the Supreme Court held that the objective of protecting the public from recidivist offenders who are assessed as posing a very high risk of further serious violent offending is capable of justifying, under s 5 of the New Zealand Bill of Rights Act 1990 (Bill of Rights), a limit on s 26(2) of the right to be free from the imposition of a second penalty.[19] However, while the detention‑authorising parts of the ESO regime are important, the limits imposed are not proportionate to those objectives because other plausible options exist which are likely to be less rights-intrusive.[20] Accordingly, they are not reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society under s 5 of the Bill of Rights.[21] The Court was satisfied that a declaration of inconsistency should be issued.[22]
[19]Attorney-General v Chisnall [2024] NZSC 178, [2024] 1 NZLR 768 at [18(a)], [22] and [208] per Winkelmann CJ, O’Regan, Williams and Kós JJ. However, where the ESO regime authorises a second penalty amounting to a retrospectively‑applied detention, no justification is possible: at [146]–[148] and [208].
[20]At [27], [232] and [262].
[21]At [28].
[22]At [264]. The Supreme Court sought submissions on the form of the declaration and, as at the date of this judgment, has not yet formally issued a declaration.
In Chisnall, the Supreme Court also held that a sentencing court has a fundamental duty to interpret and apply the legislation as consistently as possible with the Bill of Rights, using ss 5 and 6 of the Bill of Rights to maximise rights consistency to the extent consistent with s 4.[23] It noted that has implications for courts in tailoring orders.[24] But a court is still required to apply the ESO regime if it concludes a rights‑consistent application is not open.[25] So, of course, the statutory criteria for imposing an ESO must be met. And, if the case for imposition of the restrictions is made out pursuant to that “very high statutory threshold”, it is difficult to conceive of a situation in which an ESO will not be made.[26] A rights‑regarding approach suggests it must be clear that they are met.[27]
[23]At [97] and [104], citing Mosen v Chief Executive, Department of Corrections [2022] NZCA 507, (2022) 30 CRNZ 751 at [26].
[24]Attorney-General v Chisnall, above n 19, at [104].
[25]At [15] and [97].
[26]At [95].
[27]See, for instance: R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [56]–[57]. The Court noted it is “even more important than in the ordinary course of cases for a Judge, when imposing an ESO, to explain clearly to the offender why such an order is being made”, and that it must “be explained why the evidence was accepted and why that leads, on an individualised assessment, to the conclusion that the statutory test for the imposition of an ESO is met”.
Since the release of the Supreme Court’s judgment in Chisnall, this Court has applied it in Te Whata v Chief Executive of the Department of Corrections in March 2025.[28] That case was concerned with the duration of the ESO imposed. The Court held that Chisnall did not “affect the assessment of the Judge”, and that no error had been made in his assessment of the application of the Bill of Rights in determining the ESO’s duration.[29]
Persistent harbouring of vengeful intentions
[28]Te Whata v Chief Executive of the Department of Corrections [2025] NZCA 74.
[29]At [45]–[46].
This Court issued its decision in Mosen v Chief Executive, Department of Corrections after it had issued its decision in Chisnall v Attorney-General,[30] but before the Supreme Court had issued its decision in Chisnall. The latter decision does not impinge on the reasoning in Mosen regarding the criterion of persistent harbouring of vengeful intentions, which is still good law. This Court stated:[31]
[54] We accept that “persistent” can mean frequent and repetitive rather than just long-held. Dictionary definitions include “enduring” and “constantly repeated”, “incessantly repeated” and “unrelenting”, and “lasting for a long time or difficult to get rid of”. However it is the phrase “persistent harbouring of vengeful intentions” as whole that must be given meaning. The ordinary meaning of “harbouring” is to “maintain secretly”, “to think about or feel something, usually over a long period” and “to hold especially persistently”. “Vengeful” means a person “wanting or inclined to take vengeance”, “desiring revenge”, or “expressing a strong wish to punish someone who has harmed you or your family or friends”. Together the phrase means to maintain or have in one’s mind for a long time or recurringly a strong wish to take revenge on someone or to punish someone for the harm they are perceived to have done.
[55] We consider that this interpretation is consistent with Chief Executive Department of Corrections v Wilson. In that case, Venning J referred to evidence that the offender, Mr Wilson, had been “ruminating” about his girlfriend going out with his sister and had feelings of jealousy and anger which had led to his violent attacks on a number of people. Mr Wilson acknowledged that another instance of offending was the culmination of hostile rumination towards the victim’s family. He also acknowledged that he struggled to control his thoughts and feelings and that he was concerned he might act violently or explode because of negative ruminations about others. An attack on a fellow prisoner was preceded by an expression of a desire to harm him and waiting for a moment to act.
[56] Similarly, in Department of Corrections v McCord, Davison J said:
[58] The applicant submits that McCord’s past offending illustrates that he does possess this characteristic of persistent harbouring of vengeful intentions. Having regard to his conduct whereby he acted violently towards both his intimate partners in respect of whom he had developed feelings of sexual jealousy, and also towards others in response to feeling disrespected, I am satisfied that he does possess this characteristic. The violence he has exhibited in those circumstances was not reactive and an immediate response to a particular situation, but rather it appears to have been the result of rumination and a subsequent acting out of a vengeful intention.
[57] Again similarly, in Chief Executive, Department of Corrections v Paul, where the offender accepted that an ESO of 10 years should be imposed, Mander J referred to the offender’s “reported intermittent periods of engaging in violent ruminative ideation which appears to have been in response to perceptions that he is at risk of harm from others”.
[30]Mosen v Chief Executive, Department of Corrections, above n 23; and Chisnall v Attorney‑General [2021] NZCA 616, [2022] 2 NZLR 484.
[31]Mosen v Chief Executive, Department of Corrections, above n 23 (footnotes omitted), citing: Chief Executive, Department of Corrections v Wilson [2016] NZHC 1082; Department of Corrections v McCord [2017] NZHC 744; and Chief Executive of Department of Corrections v Paul [2017] NZHC 1294.
Applying that to the facts in Mosen, this Court concluded that the health assessor evidence did not support the conclusion that the criterion was met:[32]
[59] We consider that Mr Fourie’s evidence does not support a conclusion that Mr Mosen has the characteristic of “persistent harbouring of vengeful intentions towards one or more persons”. Mr Fourie said that Mr Mosen acts reactively and impulsively out of frustration and because of poor problem‑solving skills.
[60] We also consider that Mr Lascelles’ evidence does not support Mr Mosen having the characteristic either. He gave the example of Mr Mosen wanting to strangle him because he did not like the questions. That is a vengeful intent but, given its very short duration, does not qualify as “persistent harbouring” of that intent in and of itself. Mr Lascelles also referred to a long-term pattern of threatening behaviour in the context of feeling wronged by others and experiencing brief but intense anger. We consider the brevity of this intense anger is more consistent with impulsive frustration that takes its form as violence rather than “persistent harbouring of a vengeful intention”. Mr Mosen does not ruminate or hold onto thoughts of obtaining revenge for a perceived lack of response to his needs or demands. His reactive threats and violence are better captured by the “intense … urges to commit acts of violence” and the “extreme aggressive volatility” criteria. We consider the additional “persistent harbouring of a vengeful intention” characteristic has not been shown.
The decision under appeal
[32]Footnotes omitted.
On 23 November 2023, Eaton J imposed on Mr Waho an interim supervision order (ISO).[33] He relied on the report of a health assessor, clinical psychologist Mr Hadyn McKendry, dated 29 March 2023. Relevantly, the Judge stated:
[14] As observed by Mr McKendry, Mr Waho explicitly denies harbouring vengeful intent, but his history of inter-personal aggression and self-reported offence-permissive beliefs indicate he resorts to violent behaviours for perceived retribution or gaining control. He is assessed as having entrenched hyper-vigilance for real or perceived threats to his emotional and physical wellbeing, to which he harbours intent to redress through violence. …
[33]Chief Executive of the Department of Corrections v Waho [2023] NZHC 3347.
Since being released, in January 2024, Mr Waho has been served with a non‑association order in respect of his new partner, apparently after she hit him with her car and drove away.[34] Mr Waho slammed the table and used threatening language and body postures towards staff when he was advised of the order, but then engaged appropriately with them.[35] He was declined residence at the Salisbury Street Foundation because he said he would disregard their house rules, would meet with gang affiliates, and may pose a threat of violence to residents with child sex offending convictions.[36] He has not reoffended and has taken positive steps to engage with rehabilitation programmes.[37] But he continues to make threats when he does not like an outcome, such as threatening to assault anyone attempting to enforce a non‑association order with his partner’s children.[38]
The health assessor reports
[34]Reasons judgment, above n 2, at [15].
[35]At [15].
[36]At [27].
[37]At [31].
[38]At [30].
For the substantive hearing, Mr McKendry provided a further addendum report, dated 31 January 2024. Mr Waho obtained a health assessment report by Dr Martin Sellbom, a clinical psychologist. Mr McKendry provided a comment on that report on 15 February 2024. They both gave evidence and were cross-examined.
In his 29 March 2023 report, Mr McKendry noted Mr Waho’s “highly reactive and aggressive response style” while in custody, which was also evident in his history of violent behaviour. He noted “Mr Waho acknowledged ‘controlling’ his partners with physical and emotional abuse, particularly in the context of his hypervigilance for disloyalty or experiences of jealousy”. He assessed Mr Waho as posing a: “Very High risk of committing further violent offences while in the community”.[39]
[39]Emphasis in original.
He stated that, according to a psychological assessment of 7 August 2020, Mr Waho had been “reported as wanting to view photographic evidence of the stab wounds he inflicted” in the 2013 offending. He provided various explanations, ranging between “a desire to understand his behaviour and to process his sense of shame, to curiosity about the depth of the wound”.
Mr McKendry considered Mr Waho “harbours vengeful intent toward others, and particularly intimate partners”. His reasons are quoted in the High Court judgment which we quote below.[40]
[40]At [65].
Mr McKendry’s addendum report of 31 January 2024 and comment of 15 February 2024 did not change those conclusions. In particular, his addendum report added that, according to custodial file notes, he had unauthorised possession of a razorblade.
Dr Sellbom considered that Mr Waho was at high risk for violent offending, stating:
Mr Waho reported that his previous violent offending has been primarily limited to domestic violence situations. He explained that he has a fear of being abandoned and gets easily jealous of his partners. He described himself as hypersensitive and this often leads to anger, which builds up, and eventually escalates into violence.
…
Mr Waho’s relationship dysfunctions, which appear to be particularly prominent in his antisocial history, are affected by his emotional regulation and insecure attachment to others (including partners) coupled with a highly impaired capacity for behavioural control. Specifically, his intimate partner violence has typically been precipitated by heightened feelings of fears of abandonment and rejection, jealousy, insecurity, mistrust, and disempowerment. Because he lacks appropriate coping mechanisms, including difficulties with social communication, he reacts with verbal aggression and physical violence to gain control over the situation.
His report described an incident in 2020, as told by Mr Waho in an interview, where Mr Waho punched a partner in the stomach. This had “possibly resulted in her miscarriage”. However, in relation to the criterion at issue, he considered:
It is the undersigned examiner’s opinion that there is insufficient available evidence to support that Mr Waho meets this criterion. He denies harbouring persistent vengeful intentions towards anyone at this time, and there is no evidence available to counter his self-report. He does not have any contact with previous victims of his past offences and the victims of the index offending were strangers to him that pose no interpersonal threat to him. However, Mr Waho does exhibit significant hypervigilance about interpersonal threats in general, is likely to attribute hostility to others in ambiguous circumstances, and is often highly reactive when feeling threatened or provoked. It is thus possible, if not likely, that he will harbour vengeful intentions in the future as much of his past violence in relationships [has] occurred in contexts in which he feared abandonment or experienced [jealousy], which would trigger an impulsive emotional reaction to intimidate, threaten, or abuse the other person. It is not sufficiently clear to this examiner, however, that such intentions are “persistent” as opposed to transient or momentary. At this stage, the undersigned examiner cannot predict, with reasonable scientific certainty, that “persistent” harbouring of vengeful intentions towards one or more persons will occur in the future.
The judgment under appeal
On 6 March 2024, Harland J imposed an ESO on Mr Waho for five years.[41] It was accepted on Mr Waho’s behalf that he met the criteria in s 107IAA(2)(a)(i)–(ii) and (b)(ii).[42] The Judge had to decide whether the criteria in s 107IAA(2)(a)(iii) and (c) were met.[43] Of those, only the former is now at issue.
[41]Results judgment, above n 2, at [15].
[42]Reasons judgment, above n 2, at [38].
[43]At [38].
The Judge noted that Corrections psychologists completed various assessments of Mr Waho, including reports in 2010, 2015, 2017, two in 2020, and 2021. He engaged in some treatment sessions and programmes but declined recommendations for others.[44]
[44]At [22].
In relation to the s 107IAA(1)(a)(iii) criterion, whether Mr Waho was persistent in harbouring vengeful intentions, the Judge stated:[45]
[45]Footnotes omitted.
[59] I have found the persistence criterion to be met. I refer first to the 2009 offending. While I acknowledge it occurred some time ago, when Mr Waho was only 17 years of age, in my view, it provides a clear example of “rumination and a subsequent acting out of a vengeful intention”. Mr Waho felt slighted at the mere image of his then partner walking with another man. The two argued in the street and were then offered a ride home, which they took. They then walked home before entering the bedroom, where a violent and prolonged assault took place as described. These were not actions perpetrated by Mr Waho in an uncontrollable flash of rage. It is not suggested that he assaulted his partner on the street initially, in the car, or on the street when they were dropped off near their home. Rather, Mr Waho appears to have waited to act until they were home and out of sight.
[60] Further, there are the events of 2013. Mr Waho struck his then partner, again regarding fears he held of her infidelity. When his partner’s father enquired as to her wellbeing days later, Mr Waho inflicted what may likely be the most grievous injuries in his criminal record. In that instance, Mr Waho was drinking with his partner and associates when he was made aware of her father’s concern. Again, Mr Waho did not react immediately. He waited until he and his partner were home before stabbing her and punching her five times. The fact the incident took place days after the initial perceived slight suggests Mr Waho was tense regarding what he believed to be his partner’s infidelity and he was triggered by her father calling to enquire about her wellbeing.
[61] Provided with two conflicting explanations as to why Mr Waho requested to see evidence of the stab-wounds inflicted by him on his second partner, I prefer Mr McKendry’s interpretation about this request, which I consider was unusual given that it was made sometime after the event.
[62] And then it appears Mr Waho, by his own admission, struck his third partner in 2020, causing her to miscarry. While the circumstances of that assault are unknown as regarding the criterion, I find that it shows a pattern of violence towards partners.
[63] The Court of Appeal in Mosen declared the statutory phrase to allow for a “recurringly … strong wish to take revenge on someone or to punish someone for the harm they are perceived to have done”. I have found that to be the case here.
[64] I accept that there is a somewhat fine line between reactive and impulsive conduct and the persistent harbouring of vengeful intention in relation to the 2009 offending. I find that the impulsive and reactive conduct considered not [to] apply to this ground by the Court of Appeal in Mosen suggests a more immediate response than Mr Waho’s response reveals. I conclude that Mr Waho’s conduct on this occasion does not come within the Court of Appeal’s exclusion of vengeful intent lasting only for a “very short duration”.
[65] As well, my finding is consistent with Mr McKendry’s view that:
While Mr Waho denied harbouring vengeful intent, his extensive pattern of interpersonal aggression and self‑reported offence-permissive beliefs indicates his use of violence for what [he] perceives as retribution or gaining control over his environment. Mr Waho acknowledged longstanding concerns regarding prior partners’ fidelity and, more generally, suspicion of ill-intent from others, both of which have regularly triggered his violent behaviour. This pattern of behaviour is supported by Mr Waho’s assessed personality functioning, as marked paranoia and antisociality, including [hypervigilance] for perceived slights and willingness to “act out impulsively in revenge” … In this assessor’s opinion Mr Waho has an entrenched hypervigilance for real or perceived threat to his emotional and physical wellbeing, to which he harbours intent to redress through violence.
[66] With regard to Mr Waho’s denial of harbouring such intentions, I endorse the view of Mr McKendry that greater weight should be given to Mr Waho’s behaviour, which, in his view, “does demonstrate some persistence with respect to the repetitive and frequent nature of violence demonstrated over time”.
[67] The events of 2009 and 2013, alongside Mr Waho’s request to view the photographic evidence of the stabbing, to my mind, reveals that Mr Waho displays a persistent harbouring of vengeful intention towards his partners.
The Judge was satisfied the criteria in s 107IAA(2) were met and that it was appropriate to exercise her discretion to impose an ESO, taking into account this Court’s judgment in Chisnall and accepting that she was required to find there is a strong justification for an ESO.[46] Rather than the 10-year term sought, she was satisfied that a five-year term was the maximum that should be imposed.[47] The ESO included special conditions of nine months’ intensive monitoring and residential restrictions, effectively confining him to the grounds of a prison.[48] The intensive monitoring restriction has now expired. Subsequently, Mr Waho submits the special conditions were varied by the Parole Board so he can live with his whānau with residential restrictions.
Submissions
[46]At [76]. The Supreme Court’s judgment in Chisnall had not yet been issued.
[47]At [80].
[48]At [15] and [86].
Ms Barker, for Mr Waho, submits that the Crown was unable to establish a threshold requirement for imposing an ESO, of persistent harbouring of vengeful intentions. Accordingly, there is no jurisdiction to impose the ESO. As in Mosen, the offending in 2009 was impulsive and reactive and shows intense anger but not vengeful intent. There is nothing to suggest, or give rise to an inference of, vengeful intentions in the 2013 offending and no evidence to support the suggestion of ruminating. The 2020 offending was very much transactional and impulsive, to gain something and to avoid detention. It is purely speculative to characterise Mr Waho’s request to see photographs of stab wounds in 2020 as demonstrating a persistent harbouring of vengeful intentions. Mr Waho struggles to properly deal with his frustrations and releases them in words, but they cannot be construed as vengeful intentions. They are him mouthing off in a moment of stress. Mr Waho has not reoffended or breached the conditions of his ISO or ESO 17 months on from his release from prison. That is not just because of the ESO conditions, but because he has matured and has a supportive partner and whānau.
Mr Bates, for the Crown, submits the Judge’s findings were open to her, on the basis of Mr McKendry’s evidence. The underlying concern is Mr Waho’s hypervigilance or hypersensitivity in intimate relationships when he is slighted, leading him to ruminate on thoughts (or vengeful intentions) which build up over time, causing him to engage in violence hours or days later. The offending in Mosen was more impulsive. The 2009 offending was partly impulsive but did not happen immediately and occurred in the context of a persistent desire to take revenge for unfaithfulness and entrenched hypervigilance, as the expert evidence supports. In relation to the 2013 offending, Mr Waho clearly ruminated on the supposed infidelity for several days, and waited until he and his partner went home before stabbing and punching her. Asking to see the photographs in 2020, seven years after the 2013 offending, indicates Mr Waho continued to ruminate on the offending and was curious as to the depth of the wound. The other recent threats Mr Waho has made demonstrate his clear and current harbouring of vengeful intentions.
Was there a persistent harbouring of vengeful intentions?
An appeal of an ESO under s 107R of the Act is treated as an appeal against sentence. It is an evaluative, not discretionary, decision.[49] We must grant the appeal if we are satisfied that, for any reason, there is an error in the imposition of the order and a different order should have been made.[50]
[49]Attorney-General v Chisnall, above n 19, at [15] and [96].
[50]Criminal Procedure Act 2011, s 250(2); and Paniora v Chief Executive of the Department of Corrections [2018] NZCA 607 at [3].
It is not disputed that Mr Waho has a pervasive pattern of serious violent offending for the purposes of s 107I(2)(a) of the Act. Neither is it disputed that Mr Waho fulfils all the requirements of s 107IAA(2) for posing a very high risk of, in future, committing a relevant violent offence, except one. The issue, under s 107IAA(2)(a), is whether the Court is satisfied that Mr Waho “has a severe disturbance in behavioural functioning established by evidence of” “persistent harbouring of vengeful intentions towards [one] or more other persons”. If the Court is not satisfied such evidence exists, one of Parliament’s pre-conditions for the court determining that there is a very high risk he will, in future, commit a relevant violent offence is not met and an ESO cannot be imposed. In applying the section, a court must interpret the pre-condition consistently with the right to be free from the imposition of a second penalty, if possible. It must be clear the pre-condition is met.
As summarised by this Court in Mosen, “persistent harbouring of vengeful intentions” means:[51]
… to maintain or have in one’s mind for a long time or recurringly a strong wish to take revenge on someone or to punish someone for the harm they are perceived to have done.
[51]Mosen v Chief Executive, Department of Corrections, above n 23, at [54].
As the judgment in Mosen recognised in relying on other cases, hostile rumination with feelings of jealousy and anger that leads to violent attacks on a number of people can fulfil the criterion.[52] By contrast, a reactive and immediate response to a particular situation, alone, does not met the criterion.[53]
[52]At [55], citing Chief Executive, Department of Corrections v Wilson, above n 31, at [29].
[53]Mosen v Chief Executive, Department of Corrections, above n 23, at [56], citing Department of Corrections v McCord, above n 31, at [58].
In this case, Ms Barker accepts that the narrow point at issue in this appeal is whether Mr Waho’s history of offending is better classified as impulsive and reactive such that it does not satisfy the criterion.
First, we examine this in relation to the evidence available about each set of offending and other reported incidents:
(a)The 2009 offending is the best evidence of Mr Waho’s harbouring of vengeful intentions towards his then-partner. When he perceived her to have been disloyal or unfaithful to him, he waited until after he travelled home with her before hitting her over the head with a bottle and punching her in the face.
(b)The 2013 offending exhibited the same tendency. There is nothing to suggest that the initial punching of his then-partner was not immediate and reactive, as a result of Mr Waho’s jealousy. But after being aggravated by her father’s enquiry, he again waited until they got home before threatening, stabbing and punching her.
(c)There is nothing in the 2020 offending that indicates anything other than immediate and reactive offending.
(d)The incidents reported about Mr Waho in custody do not indicate anything other than immediate and reactive offending. His threat to child sex offenders and his expressed intention to assault anyone enforcing a non‑association order against him could indicate the harbouring of vengeful intentions, but nothing happened in relation to either potential situation. Contrary to the High Court Judge, we do not consider his self-reported assault on his third partner in 2020 or his request to see photographs of stab wounds in 2020 can sustain an inference of harbouring of vengeful intentions. There could be a number of explanations for either of those.
Second, we examine the expert evidence of the health assessors’ reports:
(a)Mr McKendry’s report emphasises Mr Waho’s “highly reactive and aggressive response style” and hypervigilance for disloyalty of his partners or experiences of jealousy. He grounds his opinion that the criterion at issue is met in Mr Waho’s “extensive pattern of interpersonal aggression and self-reported offence-permissive beliefs”, supported by his assessed personality functioning, including his hypervigilance and “willingness to ‘act out, impulsively in revenge’”. In his opinion, “Mr Waho has an entrenched hypervigilance for real or perceived threat to his emotional and physical well-being, to which he habours intent to redress through violence”.
(b)Dr Sellbom identifies the same hypervigilance about interpersonal threats and reactivity to threats or provocations. He considers it is “possible, if not likely, that he will harbour vengeful intentions in the future” due to fears of abandonment and jealousy that “would trigger an impulsive emotional reaction”. But “[i]t is not sufficiently clear to [Dr Sellbom], however, that such intentions are ‘persistent’ as opposed to transient or momentary”. He cannot predict that fulfilment of the criterion will occur in the future.
Much of Mr Waho’s behaviour appears to be reactive and immediate. However, we consider that the 2009 and 2013 offending, backed up by Mr McKendry’s expert evidence, constitute evidence of Mr Waho’s hostile rumination with feelings of jealousy and anger, and subsequent acting out of vengeful intentions. The two incidents, five years apart, together with his more recent threats and Mr McKendry’s opinion this year, are sufficient to render the harbouring of vengeful intentions “persistent”. We are satisfied that Mr Waho has a severe disturbance in behavioural functioning established by evidence of persistent harbouring of vengeful intentions.
Accordingly, we consider the criterion is fulfilled. On that basis, the Judge was entitled to impose an ESO. The appeal fails.
Name suppression
The text of s 107G(10) of the Act applies the suppression provisions in subpt 3 of pt 5 of the Criminal Procedure Act 2011, “with all necessary modifications”, to the hearing of an application for an ESO as if the hearing were a proceeding in respect of specified sexual offences. This raises the question of whether the identities of complainants of violent offending relevant to an ESO are automatically suppressed under s 203. Ordinarily, s 203 only suppresses the identities of complainants of specified sexual offences.
Section 107G(10) was enacted at the time that ESOs were only to be made in relation to child sex offenders.[54] The Parole (Extended Supervision Orders) Amendment Act 2014, which enabled ESOs to be made in relation to serious violent offenders as well,[55] did not change s 107G(10). There is no discussion of it in the legislative history. The potential application of s 203 to complainants of violent offending appears to be a legislative oversight. We can identify no compelling rationale for it to apply to serious violent offending. Its application is inconsistent with the principle of open justice and the freedom to impart information in s 14 of the Bill of Rights Act. Accordingly, we interpret s 107G(10), consistent with its purpose, as applying s 203 only to the hearing of an application for an ESO concerning sexual offending.
Result
[54]Parole (Extended Supervision) Amendment Act 2004, s 11.
[55]Parole (Extended Supervision Orders) Amendment Act 2014, s 15.
The appeal is dismissed.
Solicitors:
Crown Solicitor, Dunedin for Respondent
0
8
0