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High Court of New Zealand Decisions |
Last Updated: 8 April 2024
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ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES),
OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202
CRIMINAL PROCEDURE ACT 2011.
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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 2023-404-000547
[2023] NZHC 3720 |
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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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TAGO DAVID KEPA ADAMS
Respondent
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Hearing:
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13 December 2023
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Appearances:
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J Blythe & A Dawson for the Applicant
J Murdoch & J McPherson for the Respondent
Mr Adams (Respondent) & Mr Hokianga (Case Officer) via VMR
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Judgment:
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15 December 2023
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JUDGMENT OF TAHANA J
(Application for an interim supervision order)
This judgment was delivered by me on 15 December 2023 at 12 noon
..............................
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Meredith Connell, Auckland Public Defence Service, Manukau
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v ADAMS (Application for an interim supervision order) [2023] NZHC 3720 [15 December 2023]
Application for interim supervision order
Background
(a) In 2005, a conviction for wounding with intent to injure, for which he received a two-year term of imprisonment.
(b) Convictions in 2008 for common assault and assaulting police, which resulted in a year of community-based supervision.
(c) In 2011, Mr Adams was sentenced to seven years and two months’ imprisonment, in respect of four counts of burglary, two of wounding
1 R v Adams [2018] NZHC 1386.
with intent to injure, and one of unlawful interference with a motor vehicle. The two wounding with intent charges were both committed in the course of two burglaries:
(i) The first victim was home along with her children. Mr Adams entered the house, discovered the victim asleep, straddled her and punched her numerous times to the head, before running from the house. As a result, the victim was left severely traumatised and received bruising to both eyes, a graze on the corner of her right eye, swelling and numbness to her left cheek, a fractured left cheek bone, and a fractured left eye socket.
(ii) Some three weeks later, Mr Adams again entered a residential address. Mr Adams entered the bedroom, walked straight up to the female victim, and began punching her numerous times to the head. She too was left severely traumatised and received swelling and bruising to her face, a broken nose, five stitches to her forehead and a cut to the inside of her mouth, and a cut to her lip which required two stitches.
(iii) Mr Adams later admitted to having thoughts of raping these victims.2
(d) On 12 June 2018, Whata J sentenced Mr Adams to six years and five months’ imprisonment for the index offending which occurred in February 2017. Mr Adams had been released from prison in respect of the 2011 offending. He was on parole conditions that were set to apply until 9 May 2017. The circumstances of the offending, and Mr Adams response, are as follows:
(i) On 13 February 2017, Mr Adams approached a woman walking along a road in Mount Eden. He placed her in a headlock, choking her, then pushed her into the footwell of his car.
2 At [15].
Mr Adams proceeded to choke the victim to stop her from screaming. When the victim continued to scream, he gouged her eyes with his fingers. These attacks caused bruising to her forehead and haemorrhaging in both of her eyes. Mr Adams then drove away with the victim still in the footwell. As he did so he touched her genital area on the outside of her clothing, then pushed his hand beneath the victim’s shorts and underwear and touched her skin in the area around her pelvic bone. The victim was able to escape by grabbing the door handle and rolling from the car as it travelled down the road at speed. As a result of having to jump from the moving car, she sustained deep cuts on her right elbow and abrasions over her body.
(ii) Two hours later, Mr Adams entered a property in Mount Eden and stole a number of pairs of female underwear. No other items were taken.
(iii) When he was apprehended by the Police, Mr Adams admitted he had abducted the victim with the intention to rape her.
3 Report of Mr Louw dated 15 September 2023 at [40].
(a) March 2014: Mr Adams engaged in the Medium Intensity Rehabilitation Programme (MIRP) and expressed motivation to complete the Dependence Treatment Unit (DTU) programme.
(b) 2016: Mr Adams participated in the DTU programme and disclosed that he needed help, and he was scared that if he burgled a house and found a woman alone and asleep, he would likely rape her.
(c) July to November 2016: Mr Adams engaged in 19 sessions of individual psychological treatment.
(d) November 2016: case notes provided by Mr Adams’ counsel record that during individual sessions Mr Adams stated “that he has been experiencing sexual fantasies about lifeless female bodies and that he intended to rape the victims of his last two burglary charges after he knocked them unconscious. He said that [he] was anxious about acting on these thoughts, that he does not want to sexually offend and that he has not talked about this to anybody beforehand.” The notes indicate that they thought a follow up engagement with a psychologist in the community would be helpful. The engagement would take the form of an assessment of outstanding treatment needs and recommendations. Mr Adams was then released into the community and the February 2017 offending occurred.
(e) July to October 2020: Mr Adams engages with a Mason Clinic psychologist to address intrusive thoughts regarding self-harm and harm to others.
(f) October to November 2020: Mr Adams undergoes five sessions of individual treatment with a psychologist. Treatment was terminated due to transfer to another prison.
(g) March 2021: Mr Adams engages in trauma relief therapy.
(h) 17 May 2021: Mr Adams reports a preference to engage in individual treatment due to a worry about being perceived by his peers as a sex offender. Mr Adams is assessed by Mr Moon Lee, psychologist for the purposes of reporting to the Parole Board. Mr Lee assesses Mr Adams at a high risk of violent offending and at the top end of the above average risk of further sexual offending. He says Mr Adams would benefit from a comprehensive release plan and relapse prevention plan following offence-related treatment. Mr Lee notes that given his high risk of reoffending in company with entrenched deviant sexual preference, individual treatment is not considered intensive enough to support his rehabilitative needs. However, such engagement may motivate him to attend the group based ASOTP.
(i) October 2022: Mr Adams started individualised psychological treatment but it was interrupted due to matters outside of his control. He was also waitlisted for the ASOTP but he did not have sufficient time left in his sentence to complete it.
Statutory scheme
107FA Sentencing court may make interim supervision order
(1) This section applies if, before an application for an extended supervision order is finally determined, 1 or more of the following events occur:
(a) the offender who is the subject of the application is released from detention:
(b) the offender who is the subject of the application ceases to be subject to an extended supervision order:
(c) the offender who is the subject of the application fails to appear at the hearing of the application and is brought before the court under a warrant issued under section 107G(3):
(d) an offender who is a person described in section 107C(1)(b) arrives in New Zealand.
(2) The sentencing court may, on application by the chief executive, order that, until the application for an extended supervision order is finally determined, the offender is subject to the supervision conditions specified in the order.
(3) When the court makes an interim supervision order, it may impose any of the standard conditions that are (under section 107JA), or special conditions that may be (under section 107K), imposed under an extended supervision order.
(4) If, under an interim supervision order, the court imposes an intensive monitoring condition or residential restrictions, the period for which the interim supervision order is in force is not to be taken into account for the purpose of the limits specified in section 107K(3)(b) and (ba).
(5) The court may suspend an interim supervision order subject to any conditions that the court thinks fit.
(6) An interim supervision order ceases to have effect when the application for an extended supervision order is finally determined or discontinued.
(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:
4 Parole Act 2002, s 107I(1).
(ii) there is a very high risk that the offender will in future commit a relevant violent offence.
Position of parties
(a) a report of Mr Louw, psychologist dated 15 September 2023 and an addendum to that report dated 22 November 2023;
(b) an affidavit of Karyn Diane Morris, case manager at Corrections, dated 29 November 2023;
(c) a report of Mr Lee, psychologist, prepared for the New Zealand Parole Board dated 17 May 2021;
(d) a forensic report of Dr Kyros Karayiannis, consultant psychiatrist, prepared pursuant to s 88 of the Sentencing Act 2002 dated 5 April 2021;
(e) a forensic report of Dr Krishna Pillai, consultant psychiatrist, prepared pursuant to s 88 of the Sentencing Act 2002 dated 30 April 2018;
(f) a pre-sentence provision of advice to court (PAC) report dated 19 February 2018;
(g) sentencing notes of Judge A J Johns of 18 March 2011; and
(h) sentencing notes of Whata J dated 12 June 2018.
Is Mr Adams an eligible offender?
Does Mr Adams have a pervasive pattern of serious sexual or violent offending?
Violent offending
6 R v Adams, above n 1, at [34].
Sexual offending
[24] The ordinary meaning of pervade is: “spread throughout, permeate.”
38. Mr Adams told me that previous burglary and wounding with intent to injure which occurred in 2009 related to burglaries he was committing near to where he was staying in Takanini at the time. He had broken into the houses involved and these two burglaries were discovered as there were people in the house which he ended up assaulting. He reported to me that both victims on this occasion were young women although he told me this had no influence upon his decision to enter those dwellings.
...
48. It was during this period of time that Mr Adams stated he committed burglaries to supplement the family income and to assist with raising his children. In the context of these burglaries on two occasions he stated he found a young woman in the house. He assaulted the women in question. He acknowledged that during such assaults he had have [sic] thoughts of raping them but stated "I had a conscience" and also stated that he did not want to end up with a rape conviction so did not do this.
open her partly closed bedroom door and walked straight up to her and punched her numerous times. Both burglaries were accompanied by violence towards the women victims. The fact that the victim was in her room and that there does not appear to have been any basis to enter the bedroom for the purposes of the burglary, suggests that it may have been sexually motivated.
Although he only has one sexual offence, previous relevant violent crimes against two female victims while committing burglaries at their homes were potentially sexually motivated, and Mr Adams expressed deviant violent and sexual thoughts and fantasies regarding these victims.
[17] We consider a burglary type offence, whatever specific charge is used, can be a sexual offence depending on the circumstances. To take an obvious example, if the breaking and entering is for the purposes of committing a rape, it would be untenable to exclude that from consideration as not being a sexual offence.
[35] In the result, Mr Adams, I consider that it is too premature to conclude that you present an unmanageable risk of reoffending. Two factors, in particular, drive this conclusion. Your violent offending, while revealing a pattern, does not reveal a repeated pattern of sexual offending. Secondly, you have not benefitted from a treatment plan specifically directed to your needs.
Is there a high risk that Mr Adams will in future commit a relevant sexual offence?
(a) displays an intense drive, desire or urge to commit a relevant sexual offence;
(b) has a predilection or proclivity for serious sexual offending;
(c) has limited self-regulatory capacity; and
(d) displays either or both of the following:
(i) a lack of acceptance of responsibility or remorse of past offending;
(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
8 Emphasis added.
9 Parole Act 2002, s 107IAA.
Does Mr Adams display an intense drive, desire or urge to commit a relevant sexual offence?
(a) The section 88 reports record that Mr Adams “fantasised about sexual practices involving humiliation and violence,” and that he acknowledged that angry thoughts had turned to sexually violent
thoughts on previous occasions, not just the 2018 offending. Mr Adams told one report writer that rape thoughts made him “excited.”
(b) The 2018 PAC report notes that “Mr Adams presented as distraught throughout the interview, which he attributed to being aware of his own distorted perception of the world, his hatred for women, and his desire to offend both violently and sexually.”
(c) When sentencing Mr Adams for the index offending, Whata J observed that: 10
... the present sexual component of your violence is a first for you. It is also relevant that while you admit that you intended to rape the victim and self-report that you have thought about doing so on other occasions, you have not in fact committed any proven acts of actual sexual violation.
(d) Mr Lee in his 2021 report notes Mr Adams reported experiencing sexual fantasies that involve violent acts and rape scenarios.
Does Mr Adams have a predilection or proclivity for serious sexual offending?
[44] The terms “predilection” and “proclivity” are used disjunctively in s 107IAA(1)(b). Neither term is defined in the Act. In context and using the dictionary definitions of the words: “predilection” means preference for or particular liking for some serious sexual offending, “proclivity” embraces an inclination toward something considered morally wrong, such as serious sexual offending.”
10 R v Adams [2018] NZHC 1386 at [15].
11 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [44]; See also
Mist v Chief Executive of the Department of Corrections [2023] NZCA 549 at [58].
rape the victims of his earlier burglary offending and index offending and says they demonstrate both a preference and an inclination towards serious sexual offending.
Does Mr Adams have limited self-regulatory capacity?
... Use of the word “limited” suggests that questions of degree are involved in this assessment. The phrase is used in the context of a list of factors that must be established before an extended supervision order can be made. The apparent nexus is between the existence of limited self-regulatory capacity (on the one hand) and the high risk of committing a relevant sexual offence (on the other).
[92] At one level, the inquiry is directed to whether an offender has a limited capacity to self-regulate his or her desires or urges to commit relevant sexual offences. Put another way, the question is whether an offender has sufficient capacity to self-regulate those impulses. Yet, to approach the issue in that way is over simplistic. As a matter of common sense, the extent of any ability to self-regulate those impulses is dependent on the capacity to avoid circumstances in which the relevant drive, desire or urge are likely to manifest themselves.
considers that further offending in the community would have been a likely outcome if Mr Adams had not been imprisoned for this time. This observation is consistent with Dr Pillai’s observation that he “has no viable plans for community living and if [he] return[s] to the community at this time [he] pose[s] a very high risk of reoffending within a short space of time.”13
Does Mr Adams display either a lack of acceptance of responsibility or remorse or an absence of understanding for or concern about the impact of his sexual offending on actual or potential victims?
13 At [89] of Dr Pillai’s report dated 30 April 2018.
[23] Offenders who present a high risk of committing a relevant sexual offence will not have the protective characteristics described in s107IAA(1)(d). This is consistent with the statutory wording which speaks of “a lack of” and “an absence of” these protective characteristics. However, the absence (or lack) of these characteristics are indicia of high risk offenders only because these protective characteristics mitigate this risk. The focus must therefore be on whether the acceptance of responsibility, remorse, understanding or concern are material in the given case in the sense that they are present to a sufficient degree to mitigate the relevant risk. Parliament cannot have intended that any degree of presence of these protective characteristics (no matter how limited and whether or not in any way operative to mitigate the risk), would preclude a person from being assessed as being at high risk. Such an interpretation would plainly be inconsistent with the statutory purpose of public protection.
14 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218.
concerns about being labelled a sex offender outweigh his awareness of the impact on future victims of his failure to undertake programmes that address the risks of sexual offending. While not intentional, I consider that this does indicate an absence of understanding of the impact on future victims.
Is there a high risk of sexual offending?
Is there a very high risk that Mr Adams will commit a relevant violent offence?
15 Parole Act 2002, s 107IAA(2).
(a) Mr Adams 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 one or more other persons; and
(b) Mr Adams 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) Mr Adams displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.
Does Mr Adams have an intense drive, desires or urges to commit acts of violence?
Does Mr Adams have extreme aggressive volatility?
Does Mr Adams have persistent harbouring of vengeful intentions towards one or more persons?
Does Mr Adams display behavioural evidence of clear and long-term planning of serious violent offences or limited self-regulatory capacity?
(a) The 2011 sentencing notes for Mr Adams’ burglary/violence offending note that he returned to offend against the victims after first committing non-violent burglaries, and once their male partners had left and they were home alone.
(b) Mr Adams engaged in “a deliberate and planned process of driving around to find a vulnerable female victim to kidnap and sexually assault”.
(c) While Mr Adams occasionally committed reactive violence in prison, he also engaged in coordinated and planned attacks of aggression against staff and other prisoners, often in association with other gang members.
Does Mr Adams display an absence of understanding for or concern about the impact of his violence on actual or potential victims?
Conclusion — is there a very high risk that Mr Adams will commit a relevant violent offence?
What conditions should be imposed?
16 Sentencing Act 2002, s 107FA(3).
(a) Not to drive, be in possession of, or have an interest in a motor vehicle without the prior written approval of a probation officer.
(b) To comply with the requirements of partial residential restrictions and remain in the area defined by a Probation Officer at Kaainga Taupua between the hours of 8pm and 8am daily unless you leave the residence:
(i) to seek urgent medical or dental treatment;
(ii) to avoid or minimise a serious risk of death or injury to you or any other person;
(iii) for humanitarian reasons approved by a Probation Officer; or
(iv) with the prior written approval of a Probation Officer in order to:
(c) To submit to electronic monitoring as directed by a Probation Officer, in order to monitor your compliance with any conditions relating to your residential restrictions.
(d) To comply with the requirements of electronic monitoring and provide unimpeded access to your approved residence by a Probation Officer and/or representatives of the monitoring company for the purposes of maintaining the electronic monitoring equipment as directed by a Probation Officer.
(e) To submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised to undertake person-to-person monitoring.
(a) reduce the risk of reoffending by the offender;
(b) facilitate or promote the rehabilitation and reintegration of the offender;
(c) provide for the reasonable concerns of victims of the offender; or
(d) comply, in the case of an offender subject to an extended supervision order, with an order of the court, made under s 107IAC, to impose an intensive monitoring condition.
17 Parole Act 2002, s 15(2).
regarding electronic monitoring and intensive supervision. Mr Adams has been in the community since July 2023 and his counsel says it is not necessary to impose electronic monitoring and/or intensive supervision to mitigate the risk of reoffending. Further, Ms Murdoch says Mr Adams has not been charged with any offending since been released. I consider that the issue of electronic monitoring and intensive supervision should be considered at the hearing of the ESO by which time counsel for Mr Adams will have received full disclosure and had an opportunity to file any further relevant evidence.
18 Parole Act 2002, s 7(1).
Result
Standard conditions of ESO:
(a) Mr Adams must report in person to a probation officer in the probation area in which Mr Adams resides as soon as practicable, and not later than 72 hours, after commencement of the order.
(b) Mr Adams must report to a probation officer as and when required to do so by a probation officer and must notify the probation officer of his or her residential address and the nature and place of his or her employment when asked to do so.
(c) Mr Adams must obtain the prior written consent of a probation officer before moving to a new residential address.
(d) If consent is given under condition 3 and Mr Adams is moving to a new probation area, Mr Adams must report in person to a probation officer in the new probation area in which Mr Adams is to reside as soon as practicable, and not later than 72 hours, after Mr Adams’ arrival in the new area.
(e) Mr Adams must not reside at any address at which a probation officer has directed Mr Adams not to reside.
(f) Mr Adams must not leave or attempt to leave New Zealand without the prior written consent of a probation officer.
(g) Mr Adams must, if a probation officer directs, allow the collection of biometric information.
(h) Mr Adams must obtain the prior written consent of a probation officer before changing his or her employment.
(i) Mr Adams must not engage, or continue to engage, in any employment or occupation in which the probation officer has directed Mr Adams not to engage or continue to engage.
(j) Mr Adams must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer.
(k) Mr Adams must not associate with, or contact, a victim of the offending without the prior written approval of a probation officer. Mr Adams must not associate with, or contact, any person or class of person specified in a written direction given to Mr Adams for the purposes of this paragraph.
Current conditions of release:
(l) To reside at an address approved in writing by a Probation Officer, and not move from that address unless you have the prior written approval of a Probation Officer.
(m) To attend an alcohol and drug assessment, and attend, participate in, and complete, any treatment or counselling directed by a Probation Officer.
(n) Not to possess, use or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for you by a health professional.
(o) To attend a psychological assessment and attend, participate in and complete any recommended treatment as directed by a Probation Officer.
(p) To attend, participate in and complete any other programme, treatment or counselling as directed by a Probation Officer.
(q) Not have contact or otherwise associate, with any victim of your offending, including previous offending, directly or indirectly, unless you have the prior written approval of a Probation Officer.
(r) To attend a reintegration meeting as directed by a Probation Officer.
(s) To disclose to a Probation Officer, at the earliest opportunity, details of any intimate relationship which commences, resumes or terminates.
(t) To obtain the written approval of a probation officer before starting or changing your position and/or place of employment (including voluntary and unpaid work).
(u) Not to communicate or associate, directly or indirectly, with any person known to you to associate with the Killer Beez gang, unless you have the prior written approval of a probation officer.
Amended programme condition:
(v) To attend, participate in, and complete a reintegration and rehabilitation programme as directed by your Probation Officer and administered by Kaainga Taupua, for up to 12 hours per day, between 8:00am and 8:00pm. To abide by the rules of the programme to the satisfaction of a Probation Officer and allow an approved person to supervise and monitor you as necessary to ensure your attendance at classes or participation in other activities associated with the programme.
Additional conditions:
(w) Not to drive, be in possession of, or have an interest in a motor vehicle without the prior written approval of a probation officer.
(x) To comply with the requirements of partial residential restrictions and remain in the area defined by a Probation Officer at Kaainga Taupua between the hours of 8pm and 8am daily unless you leave the residence:
(i) To seek urgent medical or dental treatment;
(ii) To avoid or minimise a serious risk of death or injury to you or any other person;
(iii) For humanitarian reasons approved by a Probation Officer; or
(iv) With the prior written approval of a Probation Officer in order to:
(1) Comply with any special conditions;
(2) Seek or engage in employment; or
(3) To attend training or other rehabilitative or reintegrative activities or programmes.
communications assistant and the filing and service of any further evidence and/or submissions.
Tahana J
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