The Department of Corrections can apply for extended conditions including extended supervision orders (“ESO”) for eligible people. Marek is very experienced in negotiating and opposing such applications and conditions in both the High and District Courts and before the New Zealand Parole Board.

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Corrections state that an ESO “is used to both monitor and manage the long-term risk posed by a high risk sex offender or a very high risk violent offender who is back in the community. It means that the offender remains visible to relevant agencies so that any risk is quickly identified and managed by the right people.” In other words, they are able to monitor/supervise people subject to an ESO including enforcing conditions, after a person has finished their entire sentence including release conditions post your statutory release date (after your statutory end date).

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Offenders on extended supervision orders can be monitored for up to 10 years at a time following their release from prison. These orders are significantly onerous on the impacted people.

Corrections can apply for, and the court can impose, an ESO on a person who has been convicted of a relevant sexual or violent offence and sentenced to a finite term of imprisonment and is assessed as having a real and on-going risk of further sexual or violent offending. A person on an order is subject to requirements similar to parole. This means they:

1. will have to report to their probation officer regularly

2. may be obliged to attend treatment programmes and counselling

3. will be subject to residence and employment constraints

4. will be subject to restrictions about contact with their victims and other people or groups of people

5. may be subject to electronic monitoring, GPS and restrictions on where they can live.

 

Special conditions can also be imposed, such as restrictions on being in certain places and doing certain activities. Standard conditions are outlined in Section 107JA and Special conditions can be imposed pursuant to Section 107K of the Parole Act 2002.

 

In terms of the general process, once an ESO is applied for, Corrections would usually instruct the Crown to act on their behalf and a prosecutor from the relevant Crown law office will be assigned. The application should be based on ‘expert’ evidence in a Health Assessment Report (competed by a psychologist) and other background information including on the index/original offending, progress in custody and history, which can include unproven allegations and any other Health Assessment or psychologist Report(s).

 

Once the application is filed, a hearing is scheduled in the relevant court. At that hearing, or at a subsequent mention, another hearing date will be scheduled to determine the application. Often, and if instructed, the person who wrote the Corrections HAR will be questioned (cross examined). The person facing the ESO application can also choose to have their own Health Assessment Report filed with the Court. This would need to be arranged with a qualified person which Marek can assist with. A person can also consider not challenging the order and the appropriate length of the order can be argued.

 

The Parole Act 2002 outlines that, in regard to ESO’s, the paramount consideration is that of the safety of the community. The Court are aware that the proposed ESO conditions significantly restrict and intrude upon the individual’s rights and freedoms as affirmed by the New Zealand Bill of Rights Act 1990 (“NZBORA”). The decision to impose an ESO should attract a high level of judicial scrutiny because of the individual rights and freedoms thereby affected. The Courts have found that in imposing an ESO on a person needs to be clearly and strongly justified given the inconsistency with NZBORA. Accordingly, after further evidence is heard and tested at the hearing it will be submitted to the Court that in addition to the criteria required, the Court must be satisfied that there is “strong justification” for an ESO. The usual process would include the use of an independent psychologist who will review all the current information (including Health Assessment Report submitted by Corrections) and conduct their own report. This also means that they will be subject to cross examination by the lawyer acting for Corrections.

 

ESO’s are governed by sections 107F to 107X of the Act. Section 107I of the Act sets out the ESO regime. Section 107I(1) states that the purpose of an order of extended supervision is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences. The Court must be satisfied that the person has had a pervasive pattern of sexual and/or violent offending and that there is a high risk that the offender will in future commit a relevant serious sexual offence (or very high risk if related to violence). The Court must then make specific finding as to whether the person meets the qualifying criteria set out in s107IAA of the Act. This process requires careful and expert guidance and representation.