Chief Executive, Department of Corrections v Maindonald [2018] NZHC 944 (4 May 2018)

Last Updated: 3 July 2018

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2017-412-000050 [2018] NZHC 944

THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

v

REGAN JAMES MAINDONALD

Hearing:	4 May 2018
Appearances:	M J Grills for the Crown S A Saunderson-Warner for the Defendant
Judgment:	4 May 2018

ORAL JUDGMENT OF NATION J

[1] Mr Maindonald, on 29 January 2018, your sentence of two years, four months’ imprisonment for having unlawful sexual intercourse with a 15 year old girl came to an end. The Department of Corrections has applied for an extended supervision order. If I make an extended supervision order, you will remain under the strict supervision of the Department of Corrections and the Parole Board for the period I specify for up to 10 years.

[2] Corrections have also asked for you to be subject to intensive monitoring for 12 months. If I allow that, you will be under 24 hours a day, seven days a week supervision. You know what that would be like because, since the end of January, you

DEPARTMENT OF CORRECTIONS v MAINDONALD [2018] NZHC 944 [4 May 2018]

have been living under that sort of supervision in the special accommodation which has been built for that purpose on the grounds of the Christchurch Prison.

[3] I can make an extended supervision order where you have a history of repeated sexual offending and other sexual misconduct, and when there is a high risk of serious particular sexual offending in the future.

[4] On 6 March 2013, you swam alongside three older women in a swimming pool in Dunedin and fleetingly but indecently touched them. For that you received a sentence of six months and three weeks’ imprisonment.

[5] In August 2015, you were alone in a house with a 15 year old girl. You had sex with her. You knew she was only 15. I know you say she was a willing participant but you were then aged 24 and she was 15. What you did was a criminal offence and you received your most recent sentence.

[6] Your most common offending in the past has been when you have indecently exposed yourself to women, even masturbating in front of them. This has happened in front of strangers and people you knew, when you were visiting a Probation Office and in front of a prison corrections officer. All the women who had to witness your actions were distressed and no doubt disgusted by what you were doing. The reports I have read tell me you have no understanding of how this sort of behaviour upsets the people who have to see it. You have even criticised them for going to the Police.

[7] All the information I have seen indicates there is a real risk that, unless you do something to change the way you think and learn to control yourself, you will offend in this way again. The most likely offending is doing an indecent act.

[8] You need to understand just how serious the situation is for you. The psychologist, Mr Prince, who spoke to you at length recently, told me that you were at least beginning to understand how serious the situation is.

[9] I want to remind you of that.
[10] Because of your convictions for indecent assault and unlawful sexual connection with a young person, you have been given a two strikes warning. With the law as it stands, this means that, if you are convicted again of indecently touching a woman, even if only briefly, you will face the maximum sentence of seven years’ imprisonment without parole for that offence.

[11] If you are convicted of being involved in unlawful sexual conduct with a young person under the age of 16 years knowing that she is under age, you will be liable for a maximum prison sentence of 10 or seven years without parole.

[12] The three strikes law does not apply to indecent acts in front of an adult but, if you commit that sort of offence again in the future, with your history, it is likely you would be sentenced to imprisonment. If you do an indecent act like that in public where people can see it, you will be bringing trouble on yourself. You will also be seriously upsetting the people who have to witness it.

[13] Much of your offending has happened when you were seriously under the influence of unlawful drugs or alcohol. If you do not deal with drug and alcohol problems, the risk of you committing sexual offences will remain.

[14] You have also had mental health problems in the past which has meant you have had to spend different periods in hospital. The reports I have read tell me that you need further treatment. You also need more of the individual intense counselling with a psychologist that should help you to avoid further offending in the future. If you do not receive that treatment and take advantage of it, you will be a risk to yourself and to the public.

[15] I take it that you understand all of this.

[16] Having said that, the making of an extended supervision order is a serious restriction on a person’s freedom. Parliament and the Court of Appeal have said that such an order may be made only when a person’s previous history and their psychology and personality means there is a high risk that the person will commit serious relevant sexual offences in the future. I have been given a lot of information
about your past and your psychological make-up. Based on that information, there is obviously a risk that you will be involved in further offences but that is most likely to be acting indecently.

[17] The evidence has not satisfied me that there is a high risk you will commit another serious relevant sexual offence, as that is defined in the Parole Act. I have therefore decided that Corrections’ application for an extended supervision order must be declined. This means that you will be released from your prison sentence, which ended on 29 January 2018. You will no longer be under intensive supervision, as you have been up until now.

[18] With your earlier sentence, on your release you had to live where directed by Corrections for a period of up to six months. This means Corrections must now approve the address you are going to. It will be obvious to Corrections, and it should be obvious to you, that you need to be somewhere where you can receive the psychological help you need to avoid sexual offending of any sort in the future.

[19] I warn you that, if you do not take advantage of that help and if you do offend again, the consequences for you will be very serious. If you have to be sentenced again for another offence, the Judge sentencing you will know of all the warnings you have been given.

[20] So, Mr Maindonald, the Department of Corrections’ application for the making of an extended supervision order with intensive monitoring is declined. You must now report to a Probation Officer, and there is one present in Court, so that arrangements can be made as to the address you will now go to, with their approval.

[21] As I said, with this decision, I am also releasing my full reserved judgment which, in detail, provides reasons for the decision I have just made.

Solicitors:

RPB Law, Dunedin

SA Saunderson-Warner, Barrister, Dunedin.