Wilson v Chief Executive of the Department of Corrections
[2022] NZCA 289
•4 July 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA51/2022 [2022] NZCA 289 |
| BETWEEN | ALAN GILBERT WILSON |
| AND | CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS |
| Hearing: | 15 June 2022 |
Court: | Brown, Thomas and Woolford JJ |
Counsel: | M Starling and N R Wham for Appellant |
Judgment: | 4 July 2022 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe extended supervision order is cancelled.
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
Introduction
Alan Wilson[1] was sentenced to four years’ imprisonment in October 2000. He was 16 years old. He has now either been in prison or subject to oversight by an extended supervision order (ESO) for over 21 years. In January this year, the District Court granted an application for a second ESO for a period of one year from the date of judgment.[2] Mr Wilson appeals.
Factual background
The original offending and sentence
[1]Mr Wilson is also known as Alistair Jeremy Wright.
[2]Chief Executive Department of Corrections v Wilson [2022] NZDC 878.
Between 1999 and 2000, when Mr Wilson was aged 15, he offended against four victims: his sister, who was aged 10, his male cousin aged 10 and 11, his female cousin aged two, and a female student at his school aged 15. The offending against his relatives occurred in the family home and involved various indecencies and sexual violations. His offending against the female student involved indecent assaults.
Mr Wilson pleaded guilty to and was convicted of 22 offences. On 20 October 2000, at 16 years old, he was sentenced in the District Court to four years’ imprisonment, the sentencing Judge observing:[3]
While that indecent assault [of the female student] is perhaps the least serious charge that he faces, it has nevertheless some alarming aspects and indicates to me that if Alan were allowed to go unchecked he is capable of rapes involving force applied to strangers, and that is why I said earlier this afternoon, in Youth Court, that he is not only a significant danger now to young children, but potentially a danger to females generally.
Subsequent orders
[3]Police v Wilson DC Invercargill CRN 225008222, 20 October 2000.
On 9 November 2004, after release from prison and following two parole breaches, an ESO was made by consent for a term of ten years. That ESO did not expire until 21 January 2021 because Mr Wilson breached the ESO and committed other non-sexual offences.[4]
[4]Pursuant to s 107P(1) of the Parole Act 2002.
On 5 January 2021, the Chief Executive of the Department of Corrections (the Department) applied for a further ESO for a period of five years. By the time of the substantive hearing in the District Court on 4 June 2021, the Department had revised its position and sought a two-year term instead. The decision was reserved. The Department did not seek interim standard or special conditions at the conclusion of the hearing.
On 13 October 2021 Mr Wilson was sentenced to four months’ home detention on one charge of driving while disqualified, third or subsequent offence.
On 25 January 2022, by which time Mr Wilson had been free of any ESO restrictions for just over a year, the ESO application was granted, but for a term of one year from the date of the judgment and without any special conditions. However, on 28 February the Department applied to the Parole Board for the imposition of special ESO conditions on Mr Wilson. The proposed conditions involved electronic monitoring and a curfew, as well as conditions as to Mr Wilson’s whereabouts, requiring him to surrender internet capable devices upon request for inspection, that he not change or start employment without written approval from a probation officer and that he disclose details of any intimate relationships to a probation officer.[5] This application was granted in part, the Parole Board disagreeing with the need for electronic monitoring or a curfew and limiting the whereabouts condition to areas identified by a probation officer in writing. Mr Wilson’s application for a review of the Board’s decision was dismissed.[6]
Subsequent offending
[5]Parole Act 2002, s 107K.
[6]Section 67.
Since his release in 2004, Mr Wilson has been convicted twice of breaching his release conditions, 18 times of breaching his ESO and has also received a number of convictions for other offences including dishonesty, robbery, arson and driving while disqualified. He has been sentenced to imprisonment on 10 occasions, some of them involving more than one offence. For example, on 10 April 2018 he was sentenced to one year and five months’ imprisonment on two charges of breaching his ESO and one charge of driving while disqualified, third or subsequent offence.
While a number of Mr Wilson’s breaches of his ESO can be categorised as non-compliance, those which caused the Department particular concern were:
(a)2005: unauthorised employment in the kitchen of a Chipmunks Playland;
(b)2008: online contact with a 17-year-old female;
(c)2009: ongoing contact with a nine-year-old boy, the son of a flatmate;
(d)2011: working unauthorised at Trentham Racecourse on “family day”;
(e)2012: working unauthorised as a DJ in a mall;
(f)2017: online contact with a 15-year-old female;
(g)2019: alias profiles set up on Facebook, communication with a 17‑year‑old female.
Treatment
While serving his original sentence of four years’ imprisonment, in 2002, Mr Wilson completed the 33-week intensive Kia Marama Special Treatment programme for sexual offending. He attended for a second time when serving a further term of imprisonment but was exited in 2007 for inappropriate behaviour. He has attended individual treatment in the community with mixed reports and was exited from the Kia Marama maintenance group in 2015 on behavioural grounds. In 2020, he undertook five sessions of individual treatment with a safety planning focus, resulting in the development of a safety plan.
The November 2020 health assessor’s report prepared for the purposes of the ESO application described Mr Wilson’s response to treatment as follows:
37In reviewing the treatment Mr [Wilson] has undertaken over the years it is apparent that his progress toward achieving offence-related goals has been slow and somewhat compromised by behavioural and attitudinal factors. He has acknowledged responsibility for his offending, shown some understanding of the impact on his victims and he has been able to identify and challenge offence related cognitions and beliefs. He can articulate the importance of managing deviant sexual arousal and sexual compulsivity in managing risk of sexual reoffending. Although he has been able to demonstrate the ability to formulate his offence pathway and develop a Safety Plan, he has not demonstrated a consistent adherence to his plan when one considers the behaviour that has led to him being breached on multiple occasions. Various treatment providers have noted that he has a sound intellectual understanding of his sexual offending but he lacks a genuine sense of ownership and emotional connection to the harm he has caused.
The ESO regime
The ESO regime is contained in Part 1A of the Parole Act 2002 (the Act). It exists to protect members of the community from those who, “following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences”.[7] An ESO can be made in respect of an offender who has been sentenced to imprisonment for a relevant sexual or violent offence and has not ceased to be subject to that sentence, release conditions or an ESO.[8]
[7]Parole Act 2002, s 107I(1).
[8]Section 107C(1).
Any ESO application must be accompanied by a health assessor’s report which addresses whether the offender displays each of the relevant traits and behavioural characteristics about which the Court must be satisfied when assessing the offender’s risk, and whether there is a high risk that the offender will in future commit a relevant sexual offence.[9] An ESO can be made only if the Court is satisfied, after having considered the matters addressed in a health assessor’s report, that:[10]
(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.
[9]Section 107F(2A)(a), where the risk of relevant sexual offending is the issue.
[10]Section 107I(2).
The Court must be satisfied of a number of factors under s 107IAA of the Act when determining whether there is a high risk that an eligible offender will commit a relevant sexual offence. These factors are that the offender:[11]
(a)displays an intense drive, desire, or urge to commit a relevant sexual offence; and
(b) has a predilection or proclivity for serious sexual offending; and
(c) has limited self-regulatory capacity; and
(d) displays either or both of the following:
(i)a lack of acceptance of responsibility or remorse for past offending:
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
[11]Section 107IAA(1).
The Court should follow a three-step process for determining whether an ESO should be made:[12]
(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.
[12]Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].
In considering whether an ESO should be imposed, the Court may consider any evidence or information it thinks fit, whether or not admissible in a court of law.[13]
[13]Parole Act 2002, s 107H(2); see also Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [20].
An ESO has significant impacts on a person who has already served their sentence of imprisonment. As it is designed to prevent further offending, the presumption of innocence is clearly engaged. In Chisnall v Attorney-General (No 2),[14] a full Bench of this Court made a declaration that Part 1A of the Act is inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990, which provides that no one who has been finally acquitted, convicted or pardoned of an offence shall be tried or punished for it again, and that inconsistency has not been justified under s 5 of that Act.
[14]Chisnall v Attorney-General (No 2) [2022] NZCA 24; see however Attorney-General v Chisnall [2022] NZSC 77, in which leave was granted to appeal this Court’s decision.
In its substantive decision in Chisnall, this Court held that an ESO results in the imposition of a second penalty, regardless of when an offender had committed the qualifying offence.[15] It involves significant restrictions on freedom of movement and association.[16] The following observations are particularly relevant to this appeal:
[218] ESOs and PPOs [public protection orders] are imposed on persons nearing the end of the sentences imposed on them by the courts in response to their criminal offending, applying the purposes and principles of sentencing set out in the Sentencing Act including the important purpose of protecting the community from the offender. The restrictions which then flow from both ESOs and PPOs are potentially very severe, and in the case of PPOs can amount to indefinite detention. This is punishment, in the absence of trial and conviction for a further offence. It is a marked departure from the legal order reflected in s 26(2) of the Bill of Rights Act.
…
[220] We do not consider it is an adequate response to say, in assessing whether the limits on the right contained in the legislation have been demonstrably justified, that orders will not be made in individual cases without a full assessment by judicial officers. In essence that reduces the s 5 analysis to a case by case consideration without asking the essential question of whether the ESO and PPO regimes represent reasonable limits of the s 26(2) right. That is the question raised by s 3 of the Bill of Rights Act which applies the Act’s provisions to acts done by the legislative branch of government, as well as the other branches. To say the Acts may be able to be applied in a rights-compliant way does not answer the central question, which is whether the relevant provisions of the Parole Act and the [Public Safety (Public Protection Orders)] Act delineate regimes that limit rights in a way, and to an extent, that has been demonstrably justified.
[15]Chisnall v Attorney-General [2021] NZCA 616 at [145].
[16]At [223].
Chisnall was discussed recently by this Court in R (CA586/2021) v Chief Executive of the Department of Corrections, where the following observations were made:[17]
[53] We accept the submission of R that consequent upon Chisnall, the continuation of the ESO needs to be clearly justified. Whilst that has always been the case, the declarations of inconsistency made by the Court emphasise the need for careful scrutiny. In this regard we note Chisnall holds that s 26(2) of the NZBORA (the second penalty provision) is capable of being subject to a reasonable limit. “Strong justification” will, however, be required, and that accordingly is the lens through which we assess whether the Judge erred in confirming the order.
[17]R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 (footnotes omitted); see also Department of Corrections v Gray [2021] NZHC 3558.
We adopt the same approach, that is, we will consider whether there was strong justification for the Judge to impose the ESO.
District Court decision
Judge Neave first considered the risk assessment which the health assessor had undertaken using assessment tools including the Risk of Reconviction multiplied by the Risk of Imprisonment (RoC*RoI), the Automated Sexual Recidivism Scale —Revised (ASRS-R), the Static-99R, and the Violence Risk Scale — Sexual offence Version (VRS-SO).[18] The Judge noted that the health assessor had initially concluded there was an average risk of Mr Wilson committing a further sexual offence within 10 years of release from his ESO. This was lower than many previous assessments, perhaps because Mr Wilson had become a more settled individual and a maturation effect was occurring as a result of more constructive engagement in recent treatment.[19] However, the health assessor revised that assessment following feedback from the Department to the effect that his conclusion did not seem consistent with some of the information as to risk contained in his report.[20] He had also made some calculation errors. An additional test was administered and a fresh assessment undertaken, resulting in Mr Wilson being assessed as at an above average risk level.[21]
[18]Chief Executive Department of Corrections v Wilson, above n 2, at [21].
[19]At [24].
[20]At [25].
[21]At [27]–[28].
The Judge then commented:
[31] The real issue in this case revolves around the effects of Mr [Wilson]’s extensive history of breaching the extended supervision order. That needs to be set against Mr [Wilson]’s long period without any further sexual offending and the extent to which appropriate credit for that fact needs to be offset by the continued oversight he has received from Corrections over this period.
The Judge noted the “further complication” that, as at the time of the hearing, Mr Wilson had been free from the Department’s oversight for a year without any report of further problems.[22]
[22]At [32].
The Judge then turned to assess mandatory factors under s 107IAA. The Judge accepted that Mr Wilson had engaged in “offence-paralleling behaviours”, being the behaviours that resulted in breaches of the ESO and sentences of imprisonment which could reflect Mr Wilson’s desire to commit a further relevant offence.[23] The Judge said:
[43] Notwithstanding the lack of offending and recognising the limits on the protective effect of the extended supervision order, by the very narrowest of margins, I am satisfied that there is sufficient evidence of [Mr Wilson] placing himself in risky situations such as to give rise to the conclusion that he displays the requisite intense drive, desire or urge. Of particular significance are the instances of online contact with a young person. Of even greater importance is the fact that this was still carrying on in 2017 and 2019. Further setting up the alias profiles on Facebook and communicating with a seventeen year old female does give the Court considerable pause for concern.
[23]At [34].
The Judge then found that the same factors satisfied the test that Mr Wilson had a predilection or proclivity for serious sexual offending.[24] Mr Wilson’s continued breaches of his ESO were also highly relevant in assessing Mr Wilson’s limited self‑regulatory capacity.[25] The Judge described “a constant pattern throughout the sentence of [Mr Wilson] refusing to follow the rules”.[26] The Judge was satisfied there was evidence of limited self-regulatory capacity and that “insufficient time has passed before it could be safe to assume that this pattern of compliance is now the norm”.[27]
[24]At [44].
[25]At [45].
[26]At [45].
[27]At [46].
The Judge was also satisfied that there was an absence of concern about the impact of Mr Wilson’s sexual offending on actual or potential victims.[28] The Judge finally concluded that a further order for a period of one year from the date of his judgment, 25 January 2022, was all that was required to ensure Mr Wilson’s transition to an “oversight free regime” was appropriately managed.[29]
The appeal
[28]At [50].
[29]At [57].
The appeal is advanced on the ground that the District Court Judge erred because there is not a high risk that Mr Wilson will commit a relevant sexual offence in the future. In her oral submissions on behalf of Mr Wilson, Ms Wham addressed the mandatory considerations under s 107IAA. She submitted:
(a)There is insufficient evidence to show that Mr Wilson displayed an intense drive to commit a relevant sexual offence or has a predilection or proclivity for serious sexual offending. In Ms Wham’s submission, more was required than breaches of the ESO and other unrelated offending.
(b)Mr Wilson has not committed a sexual offence as an adult, noting that for some 12 months in 2021 he was not subject to an ESO (although he was subject to home detention for some of this period). His success in not committing a sexual offence in over 20 years indicates he does have adequate self-regulatory capacity, and that his capacity as at the time of the offending cannot be applied to him now as a mature man.
(c)That in assessing the lack of acceptance of responsibility or remorse for past offending and an absence of understanding for or concern about the impact of his sexual offending on actual or potential victims, the Court should have taken into account the fact that Mr Wilson did plead guilty to 22 charges of sexual offending and did not oppose the imposition of the first ESO for a 10-year period. It was also submitted that there was no logical connection between the breaches of ESO and Mr Wilson’s state of mind in respect of past or potential victims.
In response, Ms Boshier for the Department highlighted Mr Wilson’s ESO breaches and unsatisfactory response to rehabilitation and treatment.
Ms Boshier acknowledged the high standard required to impose an ESO and that it must be demonstrably justified in light of the New Zealand Bill of Rights Act. In her submission, the Judge carefully considered the evidence. She referred to the extensive cross-examination of the health assessor, acknowledging that his initial assessment had changed but explained that was as a result of a change in international best practice in terms of Common Risk Language labels. There was, in her submission, demonstrable justification for the ESO.
Ms Boshier acknowledged that the Judge described himself as satisfied “by the very narrowest of margins” that there was sufficient evidence to give rise to the conclusion that Mr Wilson displays the requisite intense drive, desire or urge to commit a relevant sexual offence. In Ms Boshier’s submission, however, the evidence was there, specifically through the breaches over the years related to risky behaviour, as well as other behaviour that did not result in Mr Wilson being charged with breaching the ESO but was nevertheless concerning behaviour. For example, being in contact with women online and not ascertaining their ages. She noted also that the health assessor did not take this behaviour into account when undertaking his risk assessment.
Ms Boshier asked us to be somewhat cautious in placing too much weight on the submission that there was no relevant offending for the 12 months or so when Mr Wilson was not subject to the ESO. She stressed that there was nothing which was reported to the authorities over that period but noted that Mr Wilson was not subject to any oversight other than when he was on his home detention sentence. She suggested, acknowledging it was speculation, that there may have been online activity involving young people but it had not come to the attention of the authorities.
In Ms Boshier’s submission, continuation of the ESO would be the last piece of the reintegration puzzle, to see if the risky behaviour had ceased with the lessening of restrictions. She noted that the conditions imposed by the Parole Board did not include electronic monitoring or a curfew but concerned electronic devices, employment and information regarding any relationship.
Discussion
A decision to impose an ESO can be appealed to this Court and is treated as an appeal against sentence.[30] This Court must allow the appeal if it is satisfied there was an error in the decision under appeal and a different decision should have been made.[31]
[30]Parole Act 2002, s 107R(2).
[31]Criminal Procedure Act 2011, s 250(2).
The Chisnall decision was delivered close in time to that of the District Court granting the ESO in the present case. It does not appear that it was brought to the Judge’s attention. It is, however, an error not to consider the application in the context of Mr Wilson’s rights pursuant to the New Zealand Bill of Rights Act and without applying the correct test of whether there was strong justification for the ESO.
Should the ESO have been imposed?
(a) Does Mr Wilson have a pervasive pattern of serious sexual offending?
It was acknowledged that the Judge did not address the question of whether Mr Wilson had a pervasive pattern of serious sexual offending. However, we accept Ms Boshier’s submission that the Judge was clearly alive to this issue, recognising, for example, that Mr Wilson’s index offending displayed a “fairly prolonged, persistent and serious pattern of sexual abuse with a number of complainants”.[32]
[32]Chief Executive Department of Corrections v Wilson, above n 2, at [44].
In any event, it was accepted on behalf of Mr Wilson that he does meet the test of having a pervasive pattern of serious sexual offending. Indeed, considering his convictions for 22 sexual offences, it could not be contended otherwise.
(b) Is Mr Wilson at high risk of committing a relevant sexual offence?
Before a court can determine that there is a high risk that Mr Wilson will commit a relevant sexual offence, it must be satisfied of all the matters listed in s 107IAA(1) of the Act.
The Judge carefully considered the evidence of the health assessor and, having done so, decided “by the very narrowest of margins” that there was sufficient evidence to enable him to conclude that Mr Wilson displayed the requisite intense drive, desire or urge to commit a relevant sexual offence. He relied on the same factors in his consideration of whether Mr Wilson had a predilection or proclivity for serious sexual offending.
When addressing whether Mr Wilson has limited self-regulatory capacity, the Judge relied on past breaches of the previous ESO, saying even the more technical breaches were important to this issue. The Judge suggested Mr Wilson had demonstrated “an inability to follow the rules”, which is perhaps a different issue.[33] He commented that Mr Wilson’s convictions for driving while his licence was suspended or he was disqualified showed the same disregard for restrictions placed on him. While the Judge took into account that there was no evidence to suggest Mr Wilson committed any sexual offending in the year-long period when he was free of an ESO, he referred to Mr Wilson’s serious offending of robbery and arson in 2005. He considered that insufficient time had passed before it could be safe to assume the pattern of compliance was the norm.[34]
[33]At [46].
[34]At [45]–[46].
The Judge accepted Mr Wilson showed an absence of concern about the impact of his sexual offending on actual or potential victims. The Judge took notice of Mr Wilson’s chequered response to therapeutic interventions, acknowledging the somewhat historic nature of this behaviour and that the more recent trend was more positive. He relied again on what he described as the “continuation of indulging in risky behaviour”, the premise being that if Mr Wilson were truly remorseful, he would be doing everything he could to make sure he did not put himself in a similar situation. The Judge viewed that behaviour as relevant to acceptance of responsibility, remorse and whether Mr Wilson displayed an absence of understanding about the impact of his offending on his victims.[35]
[35]At [48]–[49].
We consider there were a number of errors in this approach.
First, undue focus was placed on the offences and breaches committed by Mr Wilson since his initial release from prison. Leaving aside the breaches of the ESO discussed above, the only offending which is relatively serious dates back to 2005. Since then, Mr Wilson received 80 hours of community work for impersonating police, indicating that the offending was at the lower end of the scale, sentences for driving while disqualified (third or subsequent), and some dishonesty offending for which he was sentenced to two months’ imprisonment. The task for the Court when addressing the s 107IAA factors is in the context of determining whether there is a high risk that an eligible offender will commit a relevant sexual offence. One of the factors is whether the offender has limited self-regulatory capacity. While we accept that Mr Wilson’s past low level offending displayed what might be considered an undesirable attitude, we are not satisfied it has any real relevance when assessing his self-regulatory capacity as a predictor of committing further relevant sexual offences.
Secondly, when considering whether Mr Wilson displayed a lack of acceptance of responsibility or remorse, the Judge relied on Mr Wilson’s earlier struggles in engaging with therapeutic interventions, although he acknowledged that this occurred some time ago and recent trends were more positive. He appeared to rely principally on what he described as Mr Wilson’s continuation of indulging in risky behaviour, although later he observed that the Department had “somewhat over emphasised the effects of the breaches”.[36] Importantly, the Judge did not address the fact Mr Wilson pleaded guilty to the original charges and consented to the first ESO, which was for 10 years. We consider these factors to be relevant to the question of whether he displayed a lack of acceptance of responsibility or remorse for his past offending and an absence of understanding or concern about the effect of his offending on actual or potential victims.
[36]At [56].
Thirdly, Mr Wilson was sentenced to four years’ imprisonment for sexual offending when he was 16 years of age. While the sentence was at a relatively low level, that can be attributed to Mr Wilson’s youth.[37] There is no evidence that, as an adult, Mr Wilson has committed any further relevant sexual offences, and indeed his year without an ESO is significant in that regard. We consider that the Judge rightly accepted that “after a certain point the longer the period of time without offending, particularly relevant offending, the more the risk factors would seem to fall”.[38] It was an application that could have well been declined on the Judge’s own reasoning and in our view should have been.
[37]See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [52] and [77].
[38]Chief Executive Department of Corrections v Wilson, above n 2, at [52].
Mr Wilson has been subject to detention and oversight by the State for over 21 years since his initial convictions for the qualifying sexual offending. He is now 38 years old. While he has received a number of short sentences of imprisonment,[39] they were either for breaches of the ESO, some more significant than others as discussed above, or for non-sexual offending. In this regard, we remind ourselves that the purpose of an ESO is to protect the community from the person potentially committing (in this case) a further relevant sexual offence. There is no evidence of sexual offending for the period of 12 months when he was not subject to ESO oversight.
[39]In 2005, Mr Wilson was sentenced to a number of short sentences of imprisonment, some of them cumulative, resulting in a total term of three years and nine months’ imprisonment.
Given that context, together with the fact the Judge was satisfied “only by the very narrowest of margins” as to Mr Wilson’s intense urge to commit a relevant sexual offence, we consider that the evidence was insufficient for the Court to be satisfied there is a high risk that Mr Wilson will commit a relevant sexual offence. When viewed through the lens that there must be strong justification for the ESO, that conclusion is even more compelling.
The considerations that led the Judge to impose the ESO for a period of one year only go equally to the question of whether an ESO was justified at all. This is particularly so when considering the correct test. The final factor relied on in support of the ESO was to assist Mr Wilson’s reintegration into an unsupervised life. Simply because some oversight might be beneficial in assisting transition, that does not mean that there is the requisite strong justification for the ESO.
Result
The appeal is allowed. The ESO is cancelled.
Solicitors:
Crown Solicitor, Christchurch for Respondent
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