[1] In August 2009, Judge Susan Thomas, sitting in the Wellington District Court, granted an extended supervision order for a ten year term from the appellant’s April 2009 statutory release date.[1]
[2] Although in the District Court the appellant opposed the supervision order, the challenge in this appeal is solely to the ten year term which is said to be manifestly excessive.

Background

[3] In November 2003, the appellant, who was then aged 15, was sentenced to terms of imprisonment totalling five and a half years. He had been convicted at trial on eight counts of sexual offending against young girls. The convictions included three counts of sexual violation by rape involving three complainants. The appellant’s victims were aged 10, 11, and 14 at the time of the offending.
[4] Despite the appellant’s youth when he was incarcerated (the sentencing Judge saw this as a potent mitigating factor), the appellant appears not to have been granted parole. He served his full sentence. The reasons for this are not clear but probably included the appellant’s insistence that he ought not to have been convicted and his failure to enrol in or complete various programmes designed to assist him.
[5] In any event, as the time for the appellant’s release approached, the respondent took steps to obtain an extended supervision order under s 107I of the Parole Act 2002. Application was made to the District Court.
[6] The materials before the Judge included two psychological reports (headed “offender management”) from Ms E Waddington, a registered psychologist with the Department of Corrections. Two reports were necessary because the appellant refused to be interviewed for an initial assessment. On advice, he later submitted to an interview which led to the second report six months later.
[7] It is unnecessary to detail the contents of the reports. A significant observation, however, was that after the appellant had participated in 13 individual psychological behaviour sessions in prison over a three month period in 2004, he declined to continue, as a result of which treatment ceased. Thus, up to the time of the appellant’s release there had been no “treatment gains” in respect to his re-offending.
[8] The Judge also had before her a third psychologist’s report commissioned by the appellant’s solicitor and a “reintegration/release plan” which foreshadowed accommodation support for the appellant from the Salvation Army and, significantly, involvement in an approved programme with the Wellington-based organisation Te Whanau O Te Maunga Rongo.

The Judge’s Approach

[9] Except in one area, Mr Lillico did not attack the Judge’s approach. Her reserved judgment, which followed three days of hearing over a five month period, amounts to 25 pages. It is both thorough and careful and deals fairly and comprehensively with all the materials before her, including the various assessment tools currently employed by the respondent to assess the risk of sexual re-offending.
[10] The Judge weighed a number of relevant factors, including the appellant’s general hostility towards women and hostile or abusive remarks he had made about women during his imprisonment and interviews.
[11] The focus of this appeal is on the last paragraph of the judgment where the Judge gives her reasons for imposing the statutory maximum 10 year term in respect of the extended supervision order. She said:

[91] I am satisfied that the term of the order should be 10 years which is the minimum period required for the purposes of the safety of the community in light of the level of risk posed, the seriousness of the harm that might be caused to victims and the likely duration of the risk. In my view a term of 10 years would thus be in proportion to the nature and risk of any possible future offending.

Discussion

[12] Section 107I relevantly provides:

(1) The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing sexual offences against children or young persons.

...

(5) The term of the order must be the minimum period required for the purposes of the safety of the community in light of —

(a) the level of risk posed by the offender; and

(b) the seriousness of the harm that might be caused to victims; and

[13] The policy and relevant applications of s 107I have been examined by this Court in R v Peta,[2] McDonnell v Chief Executive of the Department of Corrections,[3] and Poutawa v Chief Executive of the Department of Corrections.[4]
[14] The focus of s 107I(5), as this Court commented in Peta must be on the level of risk, its likely duration, and the seriousness of potential harm to the victim.[5] The “minimum period” must be for the required purpose of community safety.[6]
[15] The Judge’s decision in that area ([11] above) follows the statutory criteria but does not amplify the view she had formed.
[16] It was on this aspect that Mr Lillico seized. In his submission, an appropriate minimum term for the extended supervision order would have been seven to eight years. He relied on three factors.
[17] First, he submitted that the Judge had failed to consider the appellant’s personal circumstances and his efforts to rehabilitate himself after his release. On this aspect the appellant filed two affidavits (unopposed by the respondent) from Tahuata Rawiri, a counsellor and facilitator with Te Whanau O Te Maunga Rongo. There was also an updating affidavit from Ms S L Gill who had been engaged by the appellant’s solicitor to develop a comprehensive release plan. Both those affidavits suggest reasonable progress by the appellant over the past 10 months in a situation where the bulk of the rehabilitation assistance he has received has come from Te Whanau O Te Maunga Rongo rather than from the Department of Corrections.
[18] We are satisfied that the Judge, in the material she had, was aware of the post-release plan and the assistance which would be provided to the appellant. There is a specific reference to those aspects in Ms Waddington’s second report. The Judge also referred briefly (at [51] of her judgment) to submissions of the appellant’s then counsel about measures in place to give the appellant community support.
[19] Mr Lillico’s second submission was, in a general way, that the Judge had failed to appreciate the appellant had spent a large portion of his “formative years in prison”. This had led to his social development being hindered, with the resulting poor scores in the relevant psychological assessments. More weight should have been given to his youth.
[20] We give no weight to this submission. The appellant’s regrettable imprisonment throughout his late teens and early adulthood would inevitably have impeded his ability to develop his interpersonal and social skills. The Judge correctly considered those aspects when weighing the risk.
[21] Counsel’s final submission was that the Court had placed too much weight on the research that underlay the various assessment tools to which the appellant had been subjected, and in particular the statistical suggestion that the risk of re-offending for sexual offenders remained static over a ten year period.
[22] We do not consider this is an appropriate case to investigate the statistical methodology and assumptions which underlie the various assessments which the respondent has used. Relevantly, we do not consider the Judge, in the way she assessed the risk, gave the statistical projections undue weight. Rather she focused on criteria relevant to the appellant and his past history.
[23] A submission advanced by Mr Sinclair was that the statutory scheme included s 107M and s 107O, which provide for extended supervision orders to be cancelled or varied if circumstances change.
[24] We agree that changing circumstances, which inevitably would include rehabilitation, compliance with programmes, and a diminishing risk, can lead to a supervision order’s cancellation or a reduction of its term. This Court, in Poutawa referred to those provisions as reinforcing a “light-handed appellate control over the length of ESOs”.[7]
[25] But we do not consider this Court in Poutawa was, by its reference to a light-handed approach, suggesting that the statutory provisions for modification or variation of supervision orders justify an order which might transgress the s 107I(5) requirement for the term of an order to be for the minimum period required for community safety purposes. We agree with Mr Lillico’s submission that it would be wrong in principle for the maximum ten year term to be imposed because it could be reviewed later. The Court is to fix the period of any order in the light of the statutory criteria. The power to cancel or modify the order comes at a later stage.
[26] There is nothing to suggest that the Judge regarded those statutory provisions, which may well come into play at a later date to the appellant’s advantage, as a justification for the term she imposed.
[27] We consider, despite the absence of specific reasons why the Judge considered the ten year term she imposed satisfied the s 107I(5) requirements, that she has not erred. She had analysed fully all the material placed before her. It is safe for us to conclude she took all relevant factors into account when she exercised her discretion. Thus there is no basis for us to alter the ten year term. We can see no justification for substituting the seven to eight year term proposed by counsel. For these reasons the appeal must be dismissed.

General Comment

[28] We consider, and suggest the respondent ensure in future cases where extended supervision orders are being sought, that the psychological reports provided include a considerably greater focus on the appropriate s 107I(5) minimum term. There was some suggestion in counsel’s submissions that the respondent, relying on the assessment tools it employs, almost invariably seeks a ten year minimum term. Whether the maximum prescribed by Parliament should usually be the minimum; whether the statistical information is unassailable; and indeed whether the respondent has any such practice, are not matters about which we will speculate in this appeal.
[29] Nonetheless we consider that the materials placed before a court invited to make an extended supervision order should include:

(a) a section in the psychological report that addresses fully the minimum term sought for the particular offender against the s 107I(5) criteria;

(b) a thorough assessment of the efficacy and suitability of post-release plans including their nature and duration;

(d) steps which the offender has taken to address perceived risks.

Disposition

[30] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] Chief Executive of Department of Corrections v Moeke DC Wellington CRI-2008-085-8190, 24 August 2009.
[2] R v Peta [2007] NZCA 28; [2007] 2 NZLR 627.

[3] McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770.
[4] Poutawa v Chief Executive of the Department of Corrections [2007] NZCA 206.
[5] At [9].
[6] At [11].
[7] At [14].

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