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High Court of New Zealand Decisions |
Last Updated: 2 August 2023
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CRI-2022-404-311
[2023] NZHC 1645 |
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UNDER
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s 107F of the Parole Act 2002
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IN THE MATTER
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of an application for an extended supervision order
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BETWEEN
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CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
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AND
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WATTIE ADOLF KAHU
Respondent
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Hearing:
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21 June 2023
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Appearances:
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B Tantrum and D Karl for the Applicant F Iggulden for the Respondent
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Judgment:
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30 June 2023
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JUDGMENT OF GORDON J
This judgment was delivered by me on 30 June 2023 at 3 pm
Registrar/Deputy Registrar Date:
Solicitors/Counsel:
Meredith Connell, Auckland
F Iggulden, Barrister, Auckland
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v KAHU [2023] NZHC 1645 [30 June 2023]
Introduction
[1] The Chief Executive of the Department of Corrections (Chief Executive) has applied for an extended supervision order (ESO) in respect of Wattie Kahu. Mr Kahu opposes the making of the order.
Background
[2] Mr Kahu was born on 9 June 1966. He is now 57 years old. He is of Tainui and Ngāti Maniapoto descent. From a young age Mr Kahu was exposed to alcohol and drug use, gang life, criminal activities, domestic violence, neglect and abuse. At age 10 he was removed from the family by the Department of Social Welfare and placed in a boys’ home where he was exposed to further violent and abusive behaviours. Mr Kahu’s subsequent pathway featured dysfunctional behaviour, substance abuse, criminal attitudes and violence. He was frequently truant from school and got into trouble for fighting with other students. Mr Kahu left school at the age of 12 with no qualifications and did not learn to read or write.
[3] Mr Kahu joined the Black Power gang at age 13 because the gang offered him protection from abusive peers at the boys’ home. This added criminal peer influences to the factors shaping and maintaining his anti-social and violent behaviour. His long history of substance abuse began with cannabis use from age 16, progressing to methamphetamine, party pills and alcohol. Mr Kahu has never been in long term employment.
[4] Mr Kahu’s offending has been characterised by persistent and serious violent offending. He has twice been considered for preventive detention which was not, however, imposed on either occasion.1 On the second of those two occasions Moore J summarised Mr Kahu’s conviction history as follows:2
1 R v Kahu HC Wanganui CRI-2007-083-1598, 19 October 2009; and R v Kahu [2017] NZHC 983.
2 R v Kahu [2017] NZHC 983 at [18]–[21].
... your first recorded offence was robbery in 1981 when you were aged just
14. You were admonished. When you were 16 you were sentenced to supervision for dishonesty offending and a month after that you received your first sentence of imprisonment. Since that time you have spent almost all of your life in jail.
[19] Some of those terms were lengthy. They include a four year sentence in 1984 for kidnapping and aggravated offending. In 1986 you were sentenced to two years’ imprisonment for violent offending and in 1988 you were sentenced to eight years and 10 months for kidnapping and other violent and dishonesty offences. In 1994 you were sentenced to a term of four years and six months’ imprisonment for assault with a stabbing or cutting instrument and other offending. In 1996 you were sentenced to 12 and a half years’ imprisonment for kidnapping and related serious violent offending and in 2009 you received a six year sentence for using a firearm to resist arrest and violent offending against your partner. At your sentencing in 2009 the Crown applied for preventive detention.
[20] A more in depth examination of the circumstances of this catalogue of offending reveals an obvious and repetitive pattern of violence, use of weapons, home invasion and kidnapping. For example, the 1988 offending involved you breaking into a house, pointing a rifle at the occupants, discharging the firearm and then forcing one of the occupants into a car at gunpoint.
[21] In 1996 you assaulted your then wife by threatening her with an axe and then entering a house and chasing and stabbing the occupants. You also broke into a shop and held a knife to the throat of the shop keeper and later you kidnapped a woman by pointing a gun to her head. That was your fifth conviction for kidnapping.
[5] The offending referred to at the end of [19] of Moore J’s decision above, for which Mr Kahu was sentenced in 2009, was committed the day after Mr Kahu had been released from prison for prior offending.3
[6] The circumstances of Mr Kahu’s most recent offending are summarised in the sentencing notes of Moore J as follows:4
[6] Early on the morning of Sunday, 20 March 2016 you and another man, Mr Walker, broke into a vacant house in Whanganui. It was being renovated. The two of you stole decorating equipment worth about $2,000.
[7] You drove away with no lights on and, no doubt because of that, you came to the attention of the Police who told you to stop.
[8] Instead of stopping, you took off at speed hitting a fence and driving through a stop sign before losing control, spinning out and crashing into a parked car. You and Mr Walker ran off. Not long afterwards Mr Walker, who
3 R v Kahu HC Wanganui CRI-2007-083-1598 at [17].
4 R v Kahu [2017] NZHC 983.
had suffered a shoulder injury in the crash, gave himself up at the Police station.
[9] The Police did not find you but they knew who you were. They spoke to your partner who told them that you did not want to be found and so an operation was planned to arrest you a few days later when you were due to attend an appointment at Whanganui Probation at 8:00 am on 24 March 2016.
[10] That day, just minutes before 8:00 am, the Police received a call about someone loitering around the back of a residential address in Whanganui. The description fitted you. Just minutes later the Police received another call from someone at another address just a few properties away. As a result, a Police cordon, which included armed officers and a dog handler, was set up.
[11] Not long after, the victim, who for the present purposes I shall refer to as AB and whose home was apparently within the cordon, was about to go to work. As she stood in her driveway an officer told her to go back inside.
[12] Just a few minutes later you jumped over the fence into her property carrying what looked like a genuine pistol but what was, in fact, an air gun which had been modified in a way which made it look authentic.
[13] You went to the front door and asked to be let in. AB unlocked the front door and you followed her inside. You say you told her that the gun was plastic but as is obvious from what happened later she believed it was a real gun. Her partner was asleep in the couple’s bedroom. You took her into the kitchen and told her that you did not want to be caught. Several times, you said, “Don’t tell them” and “Don’t tell on me”. You kept looking out at the windows.
[14] AB told you that her partner was asleep. You threatened to shoot him if she told anyone, a comment which must puts the lie to any suggestion you told her the gun was not real. You also threatened to shoot her and then said that you were just joking. Despite this, you continued to hold the gun in one hand and her in the other. You took her through various rooms in the house looking out the windows. Again you told her you were not going to shoot her. Finally, you climbed out the bedroom window where her partner was sleeping.
[15] Once outside you began to climb over the neighbour’s fence. One of the Police told you to stop. You responded by presenting the gun at him. Believing the gun was real the Police chased you and called on you to surrender. Instead you turned round and pointed the gun at them. Unsurprisingly they shot you. You suffered injuries to your left leg and the back of your head. You were taken to hospital where you refused treatment.
[16] It was only after these events that it became apparent that what was believed to be a firearm was, in fact, an air pistol modified to look like a Glock
17. To the Police, you said you wanted to be shot by them. You said that when you pointed the gun at the Police officer it was an accident. You said that you modified the air pistol to make it look more realistic and you also asked that your apologies be conveyed to AB for pointing the pistol at her.
[7] Mr Kahu was sentenced to a term of imprisonment for seven years on the charge of aggravated burglary and shorter concurrent terms on the other charges
including kidnapping and two charges of using a firearm to prevent or resist arrest. In passing sentence Moore J stated that Mr Kahu avoided preventive detention “by the skin of [his] teeth.”5
[8] Mr Kahu was released on parole in March 2023 and is subject to standard and special conditions of release until 23 September 2023 (six months after his sentence end date). The Chief Executive initially indicated he may seek an interim supervision order (ISO). However, after receiving the Parole Board decision detailing Mr Kahu’s release conditions, counsel for the Chief Executive confirmed that an ISO would not be sought.
The application
[9] The Chief Executive may apply to the Court for an ESO pursuant to s 107F(1) of the Parole Act 2002 (the Act) in respect of an eligible offender:
107F Chief executive may apply for extended supervision order
(a) where the offender is subject to a sentence of imprisonment, at any time before the later of—
(i) the sentence expiry date of the sentence to which the offender is subject that has the latest sentence expiry date, regardless of whether that sentence is for a relevant offence; and
(ii) the date on which the offender ceases to be subject to any release conditions;
...
[10] There is no dispute that Mr Kahu qualifies as an eligible offender under s 107C(1)(a) of the Act. As noted above, in 2017 he was sentenced to seven years’ imprisonment for offences including kidnapping (the “relevant violent offence”) and was still subject to that sentence of imprisonment at the time the Chief Executive filed the application on 25 August 2022.
5 R v Kahu [2017] NZHC 983 at [102].
Evidence
[11] The Chief Executive relies on a report dated 4 July 2022 prepared by Registered Clinical Psychologist Fred Bauer (the report). To prepare the report, Mr Bauer interviewed Mr Kahu, conducted a review of Mr Kahu’s probation, prison, and psychological records and contacted the case manager. Mr Kahu also provided written consent for Mr Bauer to access prison medical staff and records, contact family members, and to use information from his previous psychological treatment at Te Whare Manaakitanga Special Treatment Unit and his individual treatment with Departmental psychologists.
[12] Mr Bauer gave updating evidence orally at the hearing.6 In the course of his oral evidence Mr Bauer mentioned the organisation Te Pā, previously known as PARS,7 which has been involved in supporting Mr Kahu since his release on parole. On occasion, as he gave his evidence, Mr Bauer looked to a representative of Te Pā who was seated in the public gallery for confirmation of the point he was making. The Court considered it would be beneficial to hear directly from the representative of Te Pā. With the agreement of Mr Tantrum, counsel for the Chief Executive, and Ms Iggulden, counsel for Mr Kahu, and after having obtained the necessary approval from his superiors, Michael Lloyd of Te Pā was questioned by the Court and counsel.
The test
[13] Before a Court can make an ESO it must be satisfied of the matters set out in s 107I(2) of the Act, namely that:
(a) Mr Kahu has, or has had, a pervasive pattern of serious violent offending; and
(b) there is a very high risk that Mr Kahu will in future commit a relevant violent offence.
[14] The term “satisfied” does not connote a burden or standard of proof. It simply means the Court must make up its own mind on whether the threshold in s 107I(2) of the Act is met.8
A pervasive pattern of serious violent offending
[15] This matter is not in dispute.
[16] Mr Tantrum submits that Mr Kahu has, or has had, a pervasive pattern of serious violent offending. He says the question is whether the serious violent offending permeates or spreads across the offender’s background9 such that the pattern is a characteristic that can serve as a predictor of future conduct.10 Mr Tantrum points to Mr Kahu’s lengthy history of serious violent offending that contains 16 convictions for relevant violent offences as defined under the Act. These convictions include kidnapping, the use of firearms or weapons to resist arrest, wounding with intent to cause grievous bodily harm, acting dangerously with intent, the commission of a crime with a firearm, aggravated robbery, and robbery.
[17] Ms Iggulden accepts that given Mr Kahu’s extensive criminal history including relevant violent offences, there is a pervasive pattern of serious violent offending.
[18] That is a proper acknowledgement on behalf of Mr Kahu. In referring to this criterion Mr Bauer notes the following: Mr Kahu was 14 when he first appeared before the courts and was admonished for a violent offence; his first conviction for a violent offence was in 1981 (non-aggravated robbery – threats to person) when he was aged 14; on 16 occasions Mr Kahu has been convicted for violent offending which includes home invasions and kidnapping of victims unrelated to him, usually while armed with a knife or a gun; the most recent offending includes both of those elements along with brandishing a weapon towards the Police; his violent offending has been characterised
10 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [23]. Counsel refers to these comments of the Court of Appeal in relation to serious sexual offending and submits they apply in the context of serious violent offending. Ms Iggulden did not take issue with this.
by use of weapons including using or threatening to use knives, kitchen carving knives, a bayonet, an axe, and a gun; and the most recent offending involved use of an imitation firearm fashioned to resemble a Police-issue firearm.
[19] A pervasive pattern of serious violent offending is clearly established.
A very high risk of committing a relevant violent offence in the future
[20] This Court may determine there is a very high risk that Mr Kahu will commit a relevant violent offence in the future only if it is satisfied that Mr Kahu:11
(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.
[21] Mr Tantrum submits that while all these pre-conditions are expressed in the present tense, the real question is whether Mr Kahu has the particular characteristic, such that it may manifest in the right set of circumstances.12 Mr Tantrum submits that the relevant criteria are met in this case, relying on the report prepared by Mr Bauer.
[22] Ms Iggulden submits that when these criteria are carefully considered, the Court cannot be satisfied that there is a very high risk that Mr Kahu will commit a relevant violent offence in the future.
11 Parole Act 2002, s 107IAA.
12 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [26]–[27]. These comments were in the context of relevant sexual offending but counsel submits they apply in the context of relevant violent offending as well.
[23] I refer to each of the characteristics in turn noting counsel’s submissions and then my decision on each.
Does Mr Kahu display intense drive, desires or urges to commit acts of violence?
[24] Mr Tantrum refers to indications by the courts that this characteristic will be satisfied where there is evidence of a lengthy history of violence, particularly where it has been used as a problem-solving tool,13 or where the violence is characterised by impulsive and extreme aggression often accompanied by the use of a weapon.14
[25] Ms Iggulden says that while Mr Kahu has used violence as a problem-solving tool in the past, he has avoided reverting to violence since his most recent incarceration on 24 March 2016. She also notes that Mr Kahu has now been in the community for three months with no apparent offending or violent behaviour since being released.
[26] Mr Bauer considers this criterion is met. He refers to Mr Kahu’s long history of committing instrumental violence as well as reactive violence in response to emotional triggers. He says Mr Kahu’s traumatic childhood, youth experiences and antisocial peer associations developed and reinforced violence-supportive beliefs and intense urges to commit violence. Violence has been a typical method of solving a range of situations and difficulties for Mr Kahu, reinforced by antisocial peer associations. Mr Bauer says it appears that Mr Kahu has suppressed his violent behaviour in prison during the most recent term by expending considerable energy into controlling himself as well as considering the consequences of his actions. While acknowledging that this is a change from previous behaviour during other sentences of imprisonment, Mr Bauer notes that Mr Kahu has “yet to demonstrate desistence from violence when faced with high-risk situations and triggers of past violence in the community.” Accordingly, it is Mr Bauer’s opinion that Mr Kahu still possesses the characteristics that contribute to intense urges to commit acts of violence but the intensity of such urges was attenuated in a controlled prison environment.
13 Department of Corrections v McCord [2017] NZHC 744 at [53]–[54].
[27] I accept Mr Tantrum’s submission that while the pre-conditions in s 107IAA(2) are expressed in the present tense, they do not necessarily need to be presently manifested at the time the ESO application is determined. I accept that Alinizi can be applied to relevant violent offending. The issue is whether Mr Kahu has the particular characteristic which will then manifest in the right set of circumstances.15 In this case I consider the evidence establishes that he does.
Does Mr Kahu have extreme aggressive volatility?
[28] Mr Tantrum submits that Mr Kahu’s criminal history evinces a pattern of aggressive volatility that has persisted during previous terms of imprisonment. He says Mr Kahu has consistently used offensive weapons including an axe, carving knives, and firearms to further his offending.
[29] Ms Iggulden notes that Mr Bauer is of the opinion that Mr Kahu does not currently display extreme aggressive volatility, although he has done so in the past. She says Mr Kahu was able to demonstrate restraint and there was a relative absence of reported aggressive volatility towards others in the prison environment during his most recent period of incarceration.
[30] As Ms Iggulden notes, Mr Bauer’s opinion is that Mr Kahu does not currently display extreme aggressive volatility, while he has done so in the past. Nonetheless, Mr Bauer recognises that this development has occurred within a structured prison environment. Mr Bauer also notes that Mr Kahu has identified himself, that he struggles with emotional regulation and anger issues. He has expressed his own concern regarding the level of anger he continues to feel and his potential to react violently.
[31] Following the approach in Alinizi I consider that while Mr Kahu is not presently manifesting extreme aggressive volatility, his criminal history and self- identified risk factors mean that he has this particular characteristic such that it would manifest in the right set of circumstances. I consider that in light of both the
concentrated efforts Mr Kahu has taken to suppress his volatility in a controlled prison environment and the limited time he has now spent in a relatively uncontrolled environment in the community, the “right set of circumstances” would result in Mr Kahu’s extreme aggressive volatility manifesting itself. Accordingly, I am satisfied this characteristic is still present.
Does Mr Kahu have persistent harbouring of vengeful intentions towards one or more other persons?
[32] Mr Tantrum submits that while Mr Kahu does not presently harbour vengeful intentions, he has consistently acted in a violent and aggressive manner in the community. Mr Tantrum notes in particular Mr Kahu’s increased aggression and persistent resort to violence when faced with Police. Mr Tantrum refers the Court to Amohanga,16 and Chief Executive of the Department of Corrections v Waiti.17
[33] Ms Iggulden relies on Mr Bauer’s opinion that Mr Kahu does not persistently harbour vengeful intentions now, although he may be subject to relapse. She says that the index offending in 2016 did not demonstrate any vengeful intentions, nor has Mr Kahu demonstrated such intentions while in prison. Accordingly, any vengeful thinking occurred at least seven years ago.
[34] The Court does not derive any real assistance from the two cases referred to in
[32] above. In both cases the respondent consented to the making of an order. Although the Court is obliged to make its own assessment, in the circumstances with the order being consented to, the discussion in each case is relatively limited. Additionally, in Waiti (as fairly acknowledged by Mr Tantrum) Mr Waiti had a history of paranoia and persecutory delusions18 which makes that case factually distinct.
[35] The decision of the Court of Appeal in Mosen v Chief Executive of the Department of Corrections is of assistance.19 It contains a detailed discussion as regards interpreting this criterion. It was submitted for the respondent in Mosen that
16 Amohanga, above n 14, at [35] where the Court held the criterion was met in circumstances where the offending was characterised by reacting in a violent and aggressive manner to those who impose restrictions or curtail freedoms.
17 Chief Executive of the Department of Corrections v Waiti [2019] NZHC 3256.
18 Waiti, above n 17, at [41].
19 Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507.
“persistent” can mean frequent and repetitive rather than just long-held and consistent. It was further submitted that the respondent’s vengeful intentions were persistent in that they were recurring even though they were only briefly held at the time they manifested. The Court said:20
[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.
[36] The Court in Mosen considered the above interpretation was consistent with Chief Executive of the Department of Corrections v Wilson where the respondent had been “ruminating” about his girlfriend going out with his sister and had acknowledged that another instance of offending was the culmination of hostile rumination towards the victim’s family.21 The Court in Mosen stated that similarly, in Department of Corrections v McCord Davison J had noted that the violence the respondent had exhibited was not reactive and an immediate response to a particular situation but rather the result of rumination and a subsequent acting out of a vengeful intention.22
[37] In Mosen the Court of Appeal concluded that the brevity of the respondent’s intense anger was more consistent with impulsive frustration that took its form as violence rather than persistent harbouring of a vengeful intention.23
[38] In the present case the evidence is to the contrary. Mr Bauer refers to a psychological treatment report by M Stairmand and S Goodier (23 November 2020) which provided a revised formulation of some of Mr Kahu’s violent offending from his disclosures, which included in addition, a tendency to build intense anger and
20 Mosen, above n 19, (footnotes omitted).
21 Chief Executive of the Department of Corrections v Wilson [2016] NZHC 1082 at [39].
22 McCord, above n 13, at [58].
23 Mosen, above n 19, at [59]–[60].
resentments towards others for perceived wrongdoings (originating from childhood abuse and trauma) followed by a strong desire for revenge and subsequent use of extreme violence as punishment.
[39] Mr Bauer’s opinion is that Mr Kahu’s experiences of abuse and trauma in his earlier years likely led to feelings of powerlessness and resentment. He says Mr Kahu reportedly developed violence-supportive beliefs as a means of problem-solving or gaining efficacy. He has shown intolerance and pervasive mistrust of others as a personality trait as an adult, along with a reported tendency to build resentment and then punish others for perceived wrongdoings (as referred to in [38] above). This has contributed to a strong desire for revenge against more than one individual and use of extreme violence. Thus, Mr Bauer says a pattern of vengeful thinking has been reported in relation to some of his violent offending prior to but, he accepts, not including, his relevant index offending. Mr Bauer also says there has been no indication of vengeful or grievance thinking during Mr Kahu’s recent term in prison or in treatment. He says Mr Kahu has demonstrated a growing pattern of taking responsibility for his actions.
[40] Again, applying Alinizi, while there is no evidence that Mr Kahu is presently harbouring vengeful intentions, having regard to his pervasive mistrust of others, tendency to build resentment and then punish others for their perceived wrongdoings alongside his persistent resort to violence when faced by Police, all indicate that this characteristic is still present.
Does Mr Kahu display behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal or limited self-regulatory capacity?
[41] Mr Tantrum realistically does not argue that the first characteristic is present, in the light of Mr Bauer’s evidence.
[42] Ms Iggulden relies on Mr Bauer’s conclusion that Mr Kahu does not display the first characteristic.
[43] Mr Bauer notes that while Mr Kahu’s history of offending indicates a “chronic state of preparation” through possession of weapons, there is limited evidence of long- term planning of offending. Mr Bauer considers the offending can be described as largely opportunistic influenced by his carrying of weapons.
[44] I also note that in sentencing Mr Kahu for the index offending, Moore J described the offending as “more in the nature of a spontaneous exploit” with “no evidence of premeditation or planning”.24 Rather, the Judge considered the offending “might best be described as a spontaneous and impromptu reaction driven by panic and a total lack of judgement”.25 Similarly, in sentencing Mr Kahu in 2009 Mallon J, when describing the aggravating features of the lead offence: using a firearm to resist arrest, said that there was “a degree of pre-meditation because you knew the Police were looking for you at the time and you did that to avoid apprehension”.26 Neither Judge found evidence of long-term planning.
[45] This characteristic is not present. There is no evidence of “long-term planning”. However, it is an alternative to the next characteristic.
[46] Mr Tantrum relies on Mr Bauer’s conclusion that Mr Kahu has limited self- regulatory capacity. He points to how the index offending resulted from Mr Kahu’s inability to handle the stresses of being in the community. Mr Kahu is currently subject to a number of special conditions imposed by the Parole Board. Mr Tantrum submits these are necessary to manage Mr Kahu’s limited self-regulatory capacity and without them, any improvement in self-control may lapse.
[47] Ms Iggulden acknowledges Mr Bauer’s conclusions but adds that it is also relevant for this Court to consider that Mr Kahu had no misconduct reports during the most recent sentence, even prior to starting the high intensity treatment. She describes this as a significant change from previous sentences where he had a history of anti- social behaviour including misconduct and violence and this demonstrates his
24 R v Kahu [2017] NZHC 983 at [43(a)].
25 At [43(a)].
26 R v Kahu HC Wanganui CRI-2007-083-1598, 19 October 2009 at [23].
willingness and ability to comply. Ms Iggulden further says that Mr Kahu has been able to maintain his self-control while having been in the community for three months.
[48] Mr Bauer’s opinion is that Mr Kahu’s lifetime patterns of: emotional dysfunction following serious childhood trauma; substance abuse; frequency of general and violent offending; and rapidity of reoffending following release (in one instance being just one day) all indicate poor self-regulatory capacity both generally and regarding violence. Mr Kahu’s violent offending has included reactive and emotionally driven violence. Mr Bauer refers to the index offending having occurred when the stresses of life outside prison began to overwhelm Mr Kahu. He resorted to some of his previous behaviours including taking drugs such as methamphetamine, which resulted in him losing his job. He then increased his substance abuse further and began associating with gang members and old anti-social friends. His thought patterns returned to offending-supportive cognitions.
[49] While Mr Bauer notes that over the past five years in prison, Mr Kahu has apparently desisted from substance abuse and violence and reported using replacement conflict resolution behaviour, nevertheless, in treatment during this sentence Mr Kahu has expressed concern regarding the level of anger he continues to feel and his potential to react violently. Mr Bauer says that while Mr Kahu has learned to exert sufficient self-control to avoid serious physical violence in the structured prison environment, this control appears to be fragile and may lapse in stressful circumstances in the community. He has very little experience or demonstration of self-regulation in the community.
[50] Mr Bauer concludes that Mr Kahu has recently developed a tenuous improvement in self-regulatory capacity in prison but has yet to demonstrate and maintain this reliably in the community.
[51] On the basis of Mr Bauer’s evidence I consider that the characteristic of limited self-regulatory capacity is satisfied.
Does Mr Kahu display an absence of understanding for or concern about the impact of his violence on actual or potential victims?
[52] Mr Tantrum submits that the level of understanding Mr Kahu has shown for his offending is insufficient to materially reduce his risk of committing relevant violent offences in the future. He relies on the comments of Davison J that the phrase “absence of understanding” does not mean there must be no understanding or concern,27 and the approval of the Court of Appeal where the High Court had concluded that despite a degree of understanding, the level was insufficient to materially reduce the risk of the offender committing future relevant offending.28
[53] Ms Iggulden says that Mr Kahu has expressed remorse for the kidnapping victim in the index offending, has acknowledged the negative impact of his previous criminal lifestyle on his children, and has not resorted to violence in his most recent sentence. She submits these factors, together, demonstrate that Mr Kahu has reached a level of understanding sufficient to materially reduce the risk of committing future violent offending.
[54] Mr Bauer’s opinion is that Mr Kahu has “some understanding and concern” about the impact of his violent offending on actual or potential victims. However, as submitted by Mr Tantrum, this may not prevent the Court from determining there is an absence of understanding to the level required, such that this criterion is met.
[55] There are indications that go both ways for this characteristic. Mr Bauer notes that earlier documented expressions of remorse by Mr Kahu were followed by violent reoffending. However, Mr Bauer also says that since the index offending, Mr Kahu has consistently expressed remorse for the impact of his actions on his kidnapping victim, including during the interview for Mr Bauer’s assessment. Mr Bauer’s opinion is that the expressed remorse appears to have been genuine. Mr Bauer notes that Mr Kahu engaged in the intensive STU:VO29 programme. There were reported gains and insight across all identified dynamic risk factors (including insight and cognitive distortions). Mr Bauer says this suggests an improved understanding about the impact
27 Chief Executive of the Department of Corrections v Douglas [2016] NZHC 3184 at [82]–[83].
29 Special Treatment Unit Programme for Violent Offenders.
of his violent offending on others. Unfortunately, it seems that the fortnightly maintenance sessions that were to proceed did not occur, through no fault of Mr Kahu.
[56] In Amohanga (although as noted above at [34], discussion on the various characteristics was relatively limited) the Court considered that despite the respondent expressing shame, remorse and regret regarding his violent offending, he had also attempted to deflect the responsibility for his actions and minimised his role in the violent assaults.30 The evidence was that these attempts hindered his deeper understanding of the impact of his past violent offending and that he still held beliefs which justified his anti-social behaviour.31 In those circumstances, the Judge accepted that this criterion was satisfied.
[57] Here, as Mr Tantrum points out, a similar pattern can be seen in relation to Mr Kahu’s index offending. While on the one hand showing remorse for the victim that Mr Bauer assesses as genuine, Mr Kahu’s explanation for the offending appears to be inconsistent with the facts of the offending. This would demonstrate some lack of insight on his part. Mr Kahu’s position during the psychological assessment for the Court for the 2017 sentencing was that he accidentally came across the female victim of his offending. He also stated he showed her that the gun was an imitation weapon so that she would not be frightened. He repeated that claim during Mr Bauer’s assessment interview. This claim was not accepted by Moore J at sentencing. The Judge noted Mr Kahu’s claim that he tried to show the victim the gun and told her not to “freak” because it was plastic.32 The Judge did not accept that.33 I accept Mr Tantrum’s submission that this claim is inconsistent with the subsequent threats he made to shoot the victim’s husband if she went to the authorities and that he would shoot her (although, as noted by Moore J, he apparently later said he was joking).34
[58] Mr Kahu has similarly denied elements of his offending in the past in the context of his use and/or possession of firearms. Justice Mallon noted that while Mr Kahu accepted the salient facts of his offending (including pointing a sawn-off
30 Amohanga, above n 14, at [37].
31 At [37].
32 R v Kahu [2017] NZHC 983 at [43](b).
33 At [43](b).
34 At [43](e).
double-barrelled shotgun at the constables attending the incident at the residential property) he previously gave a different version of events, including that he did not have a gun but rather a portable cellphone.35
[59] While it is apparent from Mr Bauer’s evidence that Mr Kahu has made progress during his most recent period of imprisonment, his lack of insight when in the community and pending sentence indicates that his level of understanding of the impact of his violence on actual or potential victims is limited so that there is an absence of sufficient understanding. Therefore, this criterion is met.
[60] In summary, on the criteria in s 107IAA, I have found that one criterion, long- term planning is not met. However, that is an alternative to the criterion of having limited self-regulatory capacity, which I have found to be met. The section provides that the Court may determine there is a very high risk that the offender will commit a relevant violent offence only if it is satisfied of the specified criteria. That being the case, I now move to consider that issue.
Does Mr Kahu pose a very high risk of committing a relevant violent offence in the future?
[61] Mr Bauer’s overall risk assessment is that Mr Kahu presents a high risk of committing a further relevant violent offence while in the community (in other words, not a very high risk). This conclusion is based on his assessment of factors in s 107IAA(2) of the Act, and his analysis of actuarial instruments predicting static and dynamic risk factors for violence recidivism.
[62] Mr Tantrum reminds the Court that when considering ESO applications Judges need not accept nor “rubber stamp” opinions of health assessors.36 The Court of Appeal said that what is required is:37
35 R v Kahu HC Wanganui CRI-2007-083-1598, 19 October 2009 at [5]–[6].
36 Barr v the Chief Executive of the Department of Corrections CA60/06, 20 November 2006 at [32]. See for example Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 where both health assessors found the respondent was at a medium-high risk of committing a relevant sexual offence in the future, although one health assessor opined the risk was high in the immediate future. The Judge, however, reached a conclusion that the respondent posed a high risk of committing a relevant sexual offence in the future.
37 Barr, above n 36, at [32].
... a careful assessment of all the historical and current factors, along with expert opinions of others, bearing in mind that an ESO can have substantial ongoing impact on an offender who has already completed the sentence imposed by the court for the offending. The risk of re-offending has to be such that cannot properly be ignored when viewed against the gravity of likely re-offending. ...
[63] Mr Tantrum submits that on all of the evidence there is a very high risk that Mr Kahu will commit a relevant violent offence in the future.
[64] Ms Iggulden submits that if the Court is satisfied the s 107IAA(2) criteria are met, while Mr Bauer’s assessment is not determinative, he is well placed to be able to offer the opinion he does and Mr Kahu does not pose a very high risk of committing a relevant violent offence in the future.
[65] Two key paragraphs in Mr Bauer’s report contain a summary of the events that occurred after Mr Kahu’s penultimate release from prison. Mr Bauer says:
[66] There followed the offending for which Mr Kahu was sentenced by Moore J. As earlier noted, the offending for which Mr Kahu was sentenced by Mallon J occurred one day after his prior release from prison. Mr Bauer correctly says that Mr Kahu’s offending record is notable for rapid recidivism following release. That rapid
recidivism to serious offending has resulted in Mr Kahu spending most of his adult life in prison.
[67] The issue for the Court, is essentially, will it be different this time? Mr Kahu says it will be. He says the words of Moore J at the end of the Judge’s sentencing remarks resounded with him:38
[102] Mr Kahu, as you would [sic] picked up this was a fine run thing. You avoid preventive detention by the skin of your teeth. What tipped the balance is that at the age of 50 for the first time you are showing real evidence of wanting to change. That is not just because you say so. That would never be enough. But the experts now say this although there is still a lot to be done before you will be ready to be released. Also we now have ESOs which can operate to monitor you post-release in a very intensive way which was not available last time you were sentenced.
[103] Do not let your partner and those who have shown trust and support in you down. If you do it will almost certainly be the very last chance you will ever get to live a life outside jail. And before you do you have a lot of work ahead before you can prove you really are ready.
[68] The history of Mr Kahu’s previous treatment (prior to the treatment during his most recent period of imprisonment) is not promising. Mr Bauer summarises it as follows:
38 R v Kahu [2017] NZHC 983.
[69] There does, however, seem to have been something of a change during Mr Kahu’s most recent period of imprisonment, which is consistent with his stated intention to turn his life around. As already noted, Mr Kahu completed the STU:VO. That was between 10 February 2020 and 15 October 2020. Mr Bauer extracts the following from the treatment report dated 23 November 2020:
place and prioritising his own needs over others. He was also more likely to experience and suppress anger than other men his age, but less likely to express his anger outwardly than he was at the beginning of treatment. Mr Kahu developed “a comprehensive relapse prevention plan” which identified key areas of risk and management strategies. This said, it was opined that, as was normal in the change process, the majority of Mr Kahu’s changes were fragile and subject to lapses. As is usual, follow-up maintenance sessions were recommended. A gradual reintegration pathway with multi-agency and pro-social community supports was also recommended.
[70] Mr Bauer notes that a subsequent report dated 23 April 2021 records that Mr Kahu attended only three individual maintenance sessions in March and April 2021 for the purpose of consolidating and applying previous treatment programme learning, but because of his transfer to another prison, had not completed the recommended maintenance sessions.
[71] Mr Bauer further notes that in May 2022, at his own initiative, Mr Kahu commenced one-to-one counselling with a forensic mental health nurse for the stated purpose of further addressing the impacts of his traumatic childhood abuses of various forms and furthering his anger management/emotional regulation skills. However, Mr Kahu became increasingly demanding of health staff beyond the scheduled sessions which indicated to Mr Bauer impatience and entitlement thinking.
[72] At his interview with Mr Kahu, Mr Bauer questioned him on the benefits of the STU:VO to him, his own insights, attitudinal and behavioural progression during the then current term of imprisonment, and his intentions for the future. Mr Bauer says:
43 ... On the basis of this assessment and the STU:VO treatment report, the writer is of the opinion that Mr Kahu has derived benefits from psychological treatment during this sentence and is practicing them as well as he can in a prison environment. His positive behavioural changes while in custody are also consistent with treatment gains. This pattern appeared to continue with his engagement in Counselling through the health service (although he became overly demanding of this service). Mr Kahu appears to have acted on his apparent motivation to make positive changes as noted at his sentencing. He presented as motivated to engage further with a Departmental psychologist before and after his release. Mr Kahu is likely to need considerable psychological support (among others) in maintaining his apparent treatment gains during his reintegration into a prosocial sector of community, being mindful of past lapses following treatment.
[73] Mr Bauer also employed actuarial instruments for the purpose of assisting to establish the level of risk that Mr Kahu would commit further relevant violent offences in the community. One was the RoC*RoI.39 On the basis of a computer-generated RoC*RoI score offenders are classified into one of five categories from low to very high risk of imprisonment. Mr Kahu had a RoC*RoI score that indicated a very high risk of imprisonment within five years of being released.
[74] Mr Bauer also assessed Mr Kahu using the Psychopathy Checklist-Screening Version (PCL:SV).40 Mr Kahu had previously been assessed in 2017 for the High Court sentencing. At that time he was found to be well above the average score for New Zealand offenders. Mr Bauer says of that earlier testing:
[75] In his report Mr Bauer said that although the PCL:SV is a relatively stable risk measure, he reviewed it and reassessed it in his assessment for his report. Mr Kahu was assessed as having demonstrated a number of positive changes which supported reduction in scoring (and assessed risk) on both Factor 1 (interpersonal and affective deficits) and the behavioural facet of Factor 2 (impulsivity, lacks goals and irresponsible). Therefore, Mr Kahu was reassessed as being at high risk of violent offending following release.
[76] In the report Mr Bauer says that as a means of further assessing risk factors related to Mr Kahu’s violent behaviour and his key treatment needs, the violence risk
39 An actuarial risk measure developed for the Department of Corrections to assist in the prediction of an offender’s risk of imprisonment following reconviction. It is based on static predictors (factors unchangeable by individual effort).
40 The PCL:SV is a structured assessment instrument that provides an estimate of risk of serious reoffending which is supported by published international and New Zealand research.
scale (VRS)41 was completed at the commencement of the STU:VO in December 2019. He was assessed then as being in the high risk category. Mr Bauer says he updated the VRS stages of scoring in the assessment for his report to indicate assessed changes in Mr Kahu’s dynamic risk factors, and an updated risk of violent reoffending suggested by this instrument. He concluded:
[77] The Court questioned Mr Bauer about the score noting that the VRS does not make a distinction between “high” and “very high” risks of further offending. Mr Bauer said that the possible scoring range for “high” is between 51 and 78. He said Mr Kahu’s scoring in 2017 was at the 65 mark which indicated “very high risk”.
[78] Mr Bauer then said the reassessed score was 59 on the VRS scale. His oral evidence was that, qualitatively, the score had moved from the very high risk range to within the high range.
[79] In summary, Mr Bauer said in terms of changes made during the most recent period of imprisonment:
[80] Mr Bauer then turned in his report to consider potential protective factors. He says they include Mr Kahu’s pro-social goals and pro-social view of himself. Mr Bauer is of the opinion these are supported by his demonstrated motivation towards achieving a different future for himself than his past lifestyle, along with
41 The Violence Risk Scale (VRS) is a risk assessment tool that was developed specifically for use with offenders to integrate information about violence assessment, risk prediction, and treatment readiness and change. It rates 20 dynamic factors and six static factors.
behavioural evidence of change within the prison setting. Mr Bauer says the relatively newfound connection and supportiveness of his adult children is also likely to reinforce Mr Kahu’s resolve to avoid further offending. I note that the Court received letters from two of Mr Kahu’s sisters (both of whom live in the South Island) referring to a lot of contact that they have had with Mr Kahu by video calls and by phone since his release on parole. They both confirm their support for him.
[81] Mr Bauer says, however, that Mr Kahu will likely require substantial community support in order to succeed. He says:
[82] Mr Bauer says that his assessment of Mr Kahu as having a high risk of committing a further relevant violent offence represents some mitigation in risk from his assessed risk in 2017. He says that reoffending by Mr Kahu would likely be preceded by succumbing to stress, disillusionment or through difficulties in reintegration, a collapse in community supports and/or withdrawal from his supports, re-association with anti-social peers and/or substance abuse. He says a significant high risk situation would be Mr Kahu giving up and returning to a criminal lifestyle. Should Mr Kahu reoffend it is most likely to take the form of violent and/or general offending (such as dishonesty).
[83] The expression a “very high risk” that the offender will in the future commit a relevant violent offence does not mean an immediate threat to public safety. The “very high risk” criterion relates not to the imminence of the risk but its likelihood.42 As further said by the Court of Appeal in Mosen:43
... The high bar this criterion sets reflects the public safety justification that is required to be met before a person is subjected to the limits on their freedom of movement and association that an ESO entails.
42 Mosen, above n 19, at [27].
43 At [27].
[84] Assessing the level of risk in this case is not easy. But in the end I accept Mr Bauer’s opinion that the level of risk is high (but not very high). As Mr Bauer accepts, over the past five years or so during his period of imprisonment Mr Kahu has demonstrated a concerted effort at changing his life’s pathway and addressing his identified risk factors. There have been observable positive results. This, however, has occurred in the structured prison environment. There will be challenges as he seeks to integrate into a pro-social lifestyle following release from the familiar prison environment. Significant support will be required to assist him with what is still a fragile ability to cope with rapid change and stress.
[85] That support does seem to be available, at least during the period of parole, which will come to an end in September this year.
[86] There is evidence that the Court heard in the course of oral evidence from Mr Bauer of Mr Kahu working at breaking some of his old habits and learning new skills in the three months since his release. One example provided by Mr Bauer from Mr Kahu’s probation officer was that Mr Kahu had received a phone call from a younger family member who was in trouble. In the past Mr Kahu, using his status as a violent person and previous gang associations, would have dealt with the issue personally and would have provided protection. However, after speaking to his probation officer about the request made to him, Mr Kahu agreed not to travel to the location where the events were occurring, understanding that such matters were for the authorities, not for him.
[87] Another example relayed to Mr Bauer was about friction between Mr Kahu and another person in the residence he is in, which was resolved “... by verbal means, by talking it out with others and not revert [sic] to even a low level tussle or punch up
...”. Mr Bauer said in the past Mr Kahu would have “most likely lashed out physically”.
[88] The present supervision under parole is providing both a supervisory role as well as providing coaching of new skills. Mr Bauer reported a recent conversation with Mr Kahu’s probation officer, with the probation officer saying it was a work in progress but Mr Kahu is progressing.
[89] Mr Bauer referred to a “magic twelve month period” where “things are either put in place or fall over”. For the present, the organisation Te Pā is providing significant support during Mr Kahu’s period of parole. But the Court understood from Mr Lloyd that some of that support would be able to continue after the end of the probation period in September 2023. For example, alcohol and drug counselling will continue to be available. Similarly, contact with the assigned “navigator” (the support worker at Te Pā) will continue to be available to Mr Kahu. That is not on a formal basis and of course is entirely voluntary. It will depend on Mr Kahu accessing that support.
[90] The attenuation in risk from the previously assessed “very high risk” flows from Mr Kahu’s response to treatment during his most recent period of imprisonment and since release. Of course, while in custody, Mr Kahu was in a controlled environment. Control is also present but to a lesser extent while on parole.
[91] After his parole period ends Mr Kahu will need to access such supports that continue to be available to him to continue the progress made while he was in prison. There is still a risk he will revert to his old habits and commit a relevant violent offence, but having regard to changes he has made I assess that as a high risk, not a very high risk.
Result
[92] I have found that Mr Kahu possesses the relevant characteristics which then enables the Court to go on and consider whether there is a very high risk that Mr Kahu will in future commit a relevant violent offence. I have found there is a high risk (not a very high risk). That is insufficient to satisfy the statutory test. The application by the Chief Executive for an extended supervision order is therefore refused.
Gordon J
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URL: http://www.nzlii.org/nz/cases/NZHC/2023/1645.html