The Court of Appeal has allowed William Mosen's extended supervision order to be cancelled. Photo: RNZ
A man with a history of violent offending has had his extended supervision order (ESO) cancelled despite psychologists' assessment showing he is at high risk of reoffending.
An ESO was imposed on William Mosen, 41, for five years after a District Court judge ruled he had a pattern of serious violent offending and was a high risk of further offending.
Mosen has spent most of his adult life in prison. He was first convicted at 16 for assault, burglaries and other dishonesty offences.
This type of offending continued into his adult life and escalated to shooting a man and a dog with a cut-down shotgun, choking a woman, assaulting enforcement officers, aggravated robbery and drug offences.
However, after just more than two years of living with the ESO imposed, Mosen has successfully had the order cancelled in a recent Court of Appeal ruling by Justice Jill Mallon.
Mosen argued that the judge did not interpret the criteria for an ESO consistently with the New Zealand Bill of Rights Act when it was imposed.
The criteria involved a risk that is "almost unavoidable" and demonstrates an "immediate risk to public safety", something Mosen said he did not meet.
Mosen, who recently married says the ESO makes it difficult to get on with his life and is "setting me up to fail".
"I only wish to live a happier and healthier life with my new family ... I would like for this ESO to go away."
The special conditions of the ESO required Mosen to live at an approved address, not to stay elsewhere without approval, not to have contact with any victims of his offending, not to possess or consume alcohol or drugs, to undertake assessment, treatment or counselling.
Mosen also had to disclose any relationship that he entered, not to go to Whanganui, not go near any gang premises, comply with electronic monitoring, not have contact with anyone under the age of 16 and attend a psychological assessment.
The decision describes Mosen's upbringing as "difficult and dysfunctional" with a father who was violent and drank excessively.
When he was five years old he was placed in welfare homes where he suffered emotional, sexual and physical abuse.
During his teens, he became the president of a group known as the "Nazi Rodents" and began using alcohol and drugs.
Custodial records show that as of July 2017 Mosen has accumulated more than 280 incident reports, with more than 70 for breaking rules. Ten were for threatening or abusing other prisoners or staff and four for fighting with other prisoners.
One included Mosen punching a prison officer in the face when he was irritated that the shower wasn't working properly.
According to the decision, one criterion for an ESO to be imposed that Mosen did not meet was harbouring vengeful intentions toward one or more other persons.
Mosen's lawyer Michael Bott said Mosen's violence was reactive, rather than motivated by vengeance and he, therefore, did not meet the criteria of harbouring vengeful intentions toward any identifiable person.
Psychologist Nick Lascelles supported this and said while Mosen had a long-term pattern of threatening behaviour, these episodes seemed to be typically brief.
Another psychologist, Jimmie Fourie, said Mosen acts impulsively out of frustration because of poor problem-solving skills and therefore did not show the characteristic of persistent harbouring of vengeful intentions to others.
A third psychologist, Sabine Visser, noted a risk of Mosen further offending due to frustrations with the ESO conditions and said Mosen could change, and wanted to, which would require psychiatric help.
Justice Mallon agreed with this and said it was clear Mosen wanted to get on with his life with his wife.
"Our conclusion that the criterion of 'persistent harbouring of vengeful intentions' is not met means it is not open to us to be satisfied that there is a very high risk that Mr Mosen would commit a relevant violent offence".
While Justice Mallon agreed that Mosen was at high risk of reoffending, it was less clear that this offending would be a relevant violent offence, meaning he did not meet all the criteria that warrants an ESO.
The appeal was allowed and the ESO was subsequently cancelled.
* This story originally appeared in the New Zealand Herald.