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The Queen v Brown [2005] NZCA 303; (2005) 22 CRNZ 233 (7 December 2005)

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

v

Hearing: 1 December 2005

Court: Hammond, John Hansen and Doogue JJ

Counsel: A Markham for Crown
D M Goodlet for Respondent

Judgment: 7 December 2005

1. Application for leave to appeal allowed.
   
2. Appeal allowed.
   

100. Order that an extended supervision order issue in respect of the respondent for a term of ten years.
     

REASONS

(Given by Doogue J)

Introduction

[1] The Solicitor-General applies on behalf of the Chief Executive of the Department of Corrections (CEDC) for leave to appeal against the decision of Judge Dawson of 24 June 2005 in the District Court at Wanganui declining to impose an extended supervision order on Ruka Brown.
[2] On 23 October 2001 the respondent was sentenced to an effective term of three and a half years imprisonment on charges of sexual violation and indecency in respect of a 13 year old boy. On or about 15 December 2004 the CEDC applied to the Wanganui Court for an extended supervision order (ESO) under the Parole Act 2002 (the Act).
[3] The Judge accepted that the granting of an ESO with respect to the respondent was “highly desirable”. However, the Judge found that the respondent was not assessed within the required time period set out in s 107E of the Act and that the failure was not capable of being put right.
[4] The applicant submits that the Judge erred in the latter conclusions. The applicant further submits that even if the Judge did not err, it was an error of principle to dismiss the application on the ground relied upon. The applicant submits that this Court should impose an ESO upon the respondent for the maximum permitted term of ten years.
[5] The respondent opposes the application and supports the Judge’s decision.

Relevant statutory provisions

[6] ESOs are provided for under Part IA of the Act. That Part commences with a sub-part headed “Preliminary”. It first provides:

Overview of Part

107A This Part—

(a) provides that offenders who have been convicted of certain sexual offences may, after assessment by a health assessor, be made subject to an extended supervision order by a court; and

(b) provides that an extended supervision order may last for up to 10 years; and

(c) provides that the conditions of an extended supervision order are the standard release conditions and any special conditions imposed by the Board; and

(d) provides rights of appeal and review relating to extended supervision orders.

[7] The following sections, 107B and 107C, define what is a relevant offence and who is an eligible offender for the purposes of this Part of the Act. There is no question that the respondent’s offences are relevant offences and that the respondent is within the definition of an eligible offender. Section 107C(2) provides:

(2) To avoid doubt, and to confirm the retrospective application of this provision, despite any enactment or rule of law, an offender may be an eligible offender (including a transitional eligible offender as defined in section 107Y) even if he or she committed a relevant offence, was most recently convicted, or became subject to release conditions or detention conditions, before this Part came into force.

[8] Section 107E provides an obligation upon the CEDC to assess eligible offenders. It reads:

107E Obligation to assess eligible offenders

The chief executive must ensure that, before an eligible offender is released from detention, the offender is assessed to determine the likelihood that the offender will commit any of the relevant offences referred to in section 107B(2) after release.

[9] The next set of provisions is in a sub-part headed “Application for, and making of, extended supervision orders”.
[10] Section 107F enables the Chief Executive to apply for an ESO. It provides:

107F Chief executive may apply for extended supervision order

(1) The chief executive may apply to the sentencing court for an extended supervision order in respect of an eligible offender at any time before the later of—

(a) the sentence expiry date of the sentence to which the offender is subject that has the latest sentence expiry date, regardless of whether that sentence is for a relevant offence; and

(b) the date on which the offender ceases to be subject to any release conditions.

(2) An application under this section must be in the prescribed form and be accompanied by a report by a health assessor (as defined in section 4 of the Sentencing Act 2002) that addresses (without limitation) the following matters:

(a) the nature of any likely future sexual offending by the offender, including the age and sex of likely victims:

(b) the offender's ability to control his or her sexual impulses:

(c) the offender's predilection and proclivity for sexual offending:

(d) the offender's acceptance of responsibility and remorse for past offending:

(e) any other relevant factors.

[11] Section 107G provides for the procedure following an application for an ESO. Section 107G(7) provides, amongst other things, for s 204 Summary Proceedings Act 1957 to apply with all necessary modifications to proceedings for an ESO.
[12] Section 107I enables a sentencing Court to make an ESO. It contains the purpose of such an order, the basis upon which it can be made and provisions as to its terms. It reads:

107I Sentencing court may make extended supervision order

(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.

(2) A sentencing court may make an extended supervision order if, following the hearing of an application made under section 107F, the court is satisfied, having considered the matters addressed in the health assessor's report as set out in section 107F(2), that the offender is likely to commit any of the relevant offences referred to in section 107B(2) on ceasing to be an eligible offender.

(3) To avoid doubt, a sentencing court may make an extended supervision order in relation to an offender who was, at the time the application for the order was made, an eligible offender, even if, by the time the order is made, the offender has ceased to be an eligible offender.

(4) Every extended supervision order must state the term of the order, which may not exceed 10 years.

(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

(c) the likely duration of the risk.

(6) If the person to whom an application for an extended supervision order relates is already subject to an extended supervision order, any new order may not be made for a period that, when added to the unexpired portion of the earlier order, exceeds 10 years.

[13] A later sub-part of the Act deals with appeals and reviews. Section 107R(2) makes it clear that every appeal must be to this Court and be treated as if it were an appeal against sentence under s 383 Crimes Act 1961.
[14] Section 204 Summary Proceedings Act 1957 reads:

(7) The following provisions of the Summary Proceedings Act 1957 apply, with all necessary modifications, to proceedings for an extended supervision order:

(a) section 71 (criminal records):

(b) section 201 (amendment of conviction, order, or warrant):

(c) section 203 (acts not generally to be done on Sunday), as if a warrant to arrest issued under this section were a warrant to arrest a person charged with an offence:

(d) section 204 (proceedings not to be questioned for want of form):

(e) section 206 (contempt of court).

Factual background

[15] As noted the respondent was sentenced on 23 October 2001 to three and a half years imprisonment, that being imposed for an offence of sexual violation. He was also sentenced to three years imprisonment for two indecent assaults. Those sentences followed a trial. The respondent had been convicted of rape in 1989 and imprisoned for three years and nine months.
[16] The application for the ESO was made on or about 15 December 2004. The application asserted that the respondent was likely to commit an offence within s 107B(2) of the Act after he ceased to be an eligible offender. The basis for the application was a health assessor’s report dated 12 November 2000, which supported that assertion and was attached to the application along with other relevant materials.
[17] The respondent was released from prison on 21 July 2004. He was subject to standard release conditions until 20 January 2005. He was subject to special release conditions until 24 January 2005. His sentence of imprisonment expired on 25 October 2004.

Judgment under appeal

[18] Before the District Court Judge the respondent submitted that an ESO could not be made because the application was deficient in two respects. One of those matters related to service and was dealt with by way of an adjournment and further evidence in the District Court. In dealing with it the Judge said that, if need be, he would have relied upon s 204 Summary Proceedings Act. So far as the other challenge to the ESO is concerned it is at the heart of the present appeal and we refer to it in more detail.
[19] The Judge referred to the respondent’s objection in this way:

It is argued for the Respondent that as the assessment [by the health assessor] was not conducted until 27 October 2004, two days after the sentence expiry date, that the assessment was not conducted within the required time period and therefore the application must fail.

[20] The Judge when he returned to this matter said:

[12] Section 4 of the Parole Act, which is the interpretation section, states that a “determinative sentence means a sentence of imprisonment for a fixed terms” and that “Home Detention means detention under a sentence of imprisonment in a residence”. It then goes on to state that “release conditions mean the standard release conditions and any special release conditions imposed by the Board or the sentencing Court and that apply to an offender released from detention”. Mr Brown was released from detention on 21 July 2004 and his sentence expiry date was 25 October 2004. He was not assessed as required by s 107E until 27 October 2004, two days after his sentence expiry date. While Mr Brown was still subject to standard and special release conditions, it is clear that he had already been released from detention. The provisions of s 107E were therefore not complied with by the Chief Executive in that the assessment was conducted out of time. There is no similar saving provision to s 107E as there was for the first finding in this judgment pursuant to s 204 of the Summary Proceedings Act.

[21] Notwithstanding that finding the Judge went on to express his views as to the desirability of an ESO in relation to the respondent in the following language:

[13] A perusal of all the information available to the Court with respect to this application makes the granting of an extended supervision order with respect to Mr Brown highly desirable. The granting of an extended supervision order would be desirable for the protection of the community and also, in my view, it would be very beneficial also to Mr Brown. Such an order would assist him in avoiding repeat offending of a similar type in the future.

Was the Judge correct in dismissing the application on the basis the applicant had not complied with s 107E of the Act?

Submissions

[22] The applicant first submits that the Judge has erred in his interpretation of s 107E of the Act. It is submitted, and accepted for the respondent, that that section does not require a health assessor’s report as is required under s 107F(2). It is submitted that s 107E refers to an initial screening assessment undertaken by the Department of Corrections in order to sift out eligible offenders in relation to whom it is necessary to seek a health assessor’s report.
[23] The applicant submitted that s 107E simply creates an administrative duty. There is no requirement under s 107E that the report contain specific content, as is the case with the health assessor’s report under s 107F(2). All that the s 107E assessment requires is a determination of the “likelihood that the offender will commit any of the relevant offences” after release.
[24] It is submitted that the distinction between the s 107E duty and the requirements of s 107F(2) is clear in the debates and legislative materials surrounding the passage of the Parole (Extended Supervision) Amendment Act 2004 that introduced Part 1A of the Act. It is submitted that the policymakers envisaged that all eligible offenders will be screened and that a health assessor’s report would only be commissioned where the risk was categorised as medium-high or above.
[25] It is further submitted that the Judge’s interpretation would frustrate the retrospective application of the Act, which is expressly stated in s 107C(2). If the Judge were correct and a health assessor’s report required before an offender was released from detention Part 1A of the Act could not apply to anyone who had been released prior to its passage.
[26] The respondent seeks to meet this argument in the following manner. First, it is submitted for the respondent that the Judge was correct and that the assessment upon which the CEDC relied must be the result of an assessment prior to the release of the offender from detention.
[27] Secondly, it is submitted that in any event the applicant’s submission that there had been an initial screening assessment prior to the respondent’s release from detention is not a point that can be considered by this Court as there is no evidence of an initial screening assessment. Although the health assessor’s report, which is before this Court, refers to the materials considered in the preparation of the report, there is no evidence that any particular report considered the likelihood that the respondent will commit a relevant offence after release.
[28] Thus it is submitted for the respondent that it does not matter whether the initial report had to be by the health assessor or not as there is simply nothing to establish compliance with s 107E.
[29] Thirdly, it is submitted that the underlying policy in s 107E is that an offender should know, before release from detention, whether the offender has a potential jeopardy in respect of an ESO. It is said it is an essential prerequisite of an application for an ESO that there be a s 107E assessment. It is a procedural protection for the offender so that the offender is aware before release that the offender is at risk in respect of an application for an ESO. It is submitted that that has not occurred here and, regardless of whom the report has to be from, there is no proof of one in the present case.
[30] Fourthly, it is noted that the title to s 107E “Obligation to assess eligible offenders” gives some indication as to Parliament’s concern over when an eligible offender is to be assessed.
[31] The applicant submitted to the contrary, namely, that there was sufficient material to establish compliance with s 107E. There was reference in the health assessor’s report to a successful application to the Parole Board under s 107 of the Act, prior to its amendment, which had to be because he posed a continuing risk of committing a specified offence. There is also the reference to the psychological reports referred to while the respondent was in prison. However, as there is no evidence as to the content of those reports, we fail to see how they can assist the applicant.
[32] In any event, it is submitted for the applicant, it does not follow that if there was non-compliance with s 107E then the ESO itself should be declined. It is submitted that s 107E is not a necessary prerequisite as is suggested for the respondent. It is submitted that the fact that a statutory requirement is not complied with, does not unnecessarily invalidate the entire proceeding. The applicant relies upon the expression of opinion by the author of Bennion Statutory Interpretation, Fourth Edition 2002, page 33:

This is an area where legislative drafting has been markedly deficient. Drafters find it easy to use the language of command. They say that a thing ‘shall’ be done. Too often they fail to consider the consequence when it is not done.

... It would be draconian to hold that in every case failure to comply with the relevant requirement invalidates the thing done. So the courts’ answer, where the consequences of the breach are not spelt out in the statute, has been to devise a distinction between mandatory and directory duties.

[33] Further the applicant submitted there has been a shift away from the mandatory/directory dichotomy, and a focus on the intended consequences of non-compliance (Attorney-General’s Reference (No. 3 of 1999) [2001] 1 All ER 577).
[34] The applicant submitted that if Parliament had intended non-compliance with s 107E to result in the application being treated as a nullity, then it would have said so expressly.
[35] It is further submitted that the application of s 204 of the Summary Proceedings Act 1957 with all necessary modifications to ESO proceedings made clear that Parliament did not intend a strict compliance approach.
[36] The applicant also submitted that the Judge was inconsistent in applying s 204 of the Summary Proceedings Act to remedy other alleged procedural defects but not the alleged s 107E failings.
[37] It is submitted that the Judge was wrong in that s 204 applies to all proceedings for an ESO: s 107G(7). In any event it is submitted, recourse to s 204 is not strictly necessary as non-compliance with s 107E is not relevant to the Court’s jurisdiction to impose an ESO (unless it can be said that there was an abuse of process as a result).
[38] It is emphasised in the submissions for the applicant that s 107E is not a procedural protection for offenders, but an administrative provision designed to ensure that eligible offenders are assessed to determine whether an ESO application is appropriate. Non-compliance with s 107E will not prejudice offenders and has no bearing on the application process.
[39] It is further noted for the applicant that an offender may at any time decline to co-operate in the health assessor’s process, as there is no power to compel attendance at an interview wherever the offender may be. In addition, an offender has a full opportunity to challenge the health assessor’s report and to produce their own expert evidence at the hearing.
[40] Finally under this head it is submitted for the applicant that non-compliance with s 107E should not result in a dismissal of the application, but should be remedied by an adjournment and a further report and argument rather than dismissal. The applicant relies upon the decisions of this Court in Grieve v Chief Executive of the Department of Corrections CA150/05, 30 August 2005 and Wesley-James v Chief Executive of Department of Corrections CA172/05, 9 November 2005.
[41] The respondent takes issue with these submissions and supports the Judge’s view that the procedural failure cannot be resolved by the application of s 204 of the Summary Proceedings Act.

Discussion

[42] We note that s 107E is in the Preliminary sub-part of Part 1Aof the Act dealing with ESOs. It does not form part of the sub-part dealing with applications for and the making of ESOs. As we read the section, it imposes an obligation upon the CEDC to ensure all eligible offenders are assessed prior to their release for detention. It does no more. It does not require the assessment to be by a health assessor. It is for the purpose of an evaluation as to whether the offender is likely to commit a relevant offence after release. The process can only be for the purpose of the protection of the public. The section does not require the offender to be advised of the assessment.
[43] Nor is the section relevant to the application process. Nowhere in s 107F and following is there any reference to compliance with s 107E. If the legislature had intended that the s 107E assessment was relevant to the application, it undoubtedly would have made that clear. There is no basis for implying such a requirement.
[44] We have no doubt that the legislature intended it to be obligatory for the CEDC to assess eligible offenders before their release. However, any failure to do so is not a matter that on the face of it has any consequences whatever in respect of an application for an ESO.
[45] We specifically reject the submission for the respondent that it is implicit in s 107E that the offender be informed of the assessment to enable the offender to avoid jeopardy. It is significant that there is no requirement upon the CEDC under s 107G that a copy of any assessment obtained by the CEDC under s 107E should be made available to the offender. In any event the offender is not in jeopardy in respect of an ESO until there is an application for an ESO when the offender has an opportunity to meet the case for the CEDC.
[46] The provisions of ss 107E to 107L inclusive are effectively a code in respect of the application for and the making of ESOs. Except to the extent that it may be necessary for the purpose of their interpretation to refer to provisions outside them there is no need to look outside them. There is nothing to suggest that the requirements in respect of the application for and the making of ESOs encompass material not within that sub-part of the Act. Certainly there is nothing to suggest that an offender can rely upon a provision such as s 107E, which is not in that sub-part. That is particularly so when s 107E gives the offender no rights whatever.
[47] We are therefore of the view that the Judge was wrong in considering that compliance with s 107E was a necessary requisite of the application for an ESO. Section 107E does not form part of the ESO application procedure.
[48] Given that view, it is clear that the application for leave to appeal must be allowed.

Should the Judge have made an ESO under s 107I?

[49] The applicant submits that the answer must be yes and that the threshold in s 107I (2) is clearly satisfied in this case. The respondent, on the basis of the health assessor’s report, does not feel able to challenge that view. We have no doubt that is a proper concession given the Judge’s views as to the merits. We are also of the view that an ESO should have been made.

The period of the ESO

Submissions

[50] The applicant seeks the maximum period of ten years. This is upon the basis that the health assessor recommended such a period. The health assessor noted that for offenders with a Static Score similar to the respondent’s, the risk of serious sexual recidivism actually increases over ten years.
[51] For the applicant it is submitted:

1. Section 107I(5) essentially codifies the approach of the Court in fixing the length of an ESO. It is submitted that it is not a sentencing exercise where the competing considerations in ss 7-9 of the Sentencing Act 2002 must be weighed. The sole purpose is protecting “the safety of the community” although the term imposed must be the minimum required for that purpose. The applicant relies upon what was said by a full court of the High Court in Chief Executive of Corrections v McIntosh CRI2004-409-162, 8 December 2004 at [26]–[27]:

... the Court’s function is not to set the term of the ESO by reference to the optimum rehabilitative treatment programme, less so to set a term designed to ensure that those charged with the supervision of the offender have that responsibility for only the minimum time necessary for treatment purposes. such an approach does not reflect the statutory test. Our function in terms of s 1071(5) is to decide the minimum period required for the purposes of the safety of the community in light of the level of risk posed, the seriousness of harm which might be caused and the likely duration of the risk ... These criteria underline the protective focus of the present jurisdiction. Put bluntly, orders are not to be made for the minimum period required to facilitate treatment, rather, for the minimum period required to achieve protection of vulnerable members of the community.

2. The Court is not concerned with proportionality with the relevant offence. The focus is simply on managing the risk of future offending: R v Nelson [2002] 1 Cr App R (S) 134. Section 107I(4) is expressed in terms that the period “may not exceed ten years”.

100. While aspects of ESOs undeniably have a punitive effect (in particular the effect of home detention that may be imposed for the first 12 months of an order), the purpose of the orders is protective and rehabilitative rather than punitive.

4. It is relevant in determining the appropriate length of an ESO that an offender or the CEDC may at any time apply to the Court to cancel the ESO on the grounds that the offender is no longer “likely” to re-offend: s 107M. Additionally, an offender may apply to the Parole Board to vary or discharge any of the conditions of an existing ESO: s 107O.
5. In the present case where there is an absence of favourable prognostic factors that may serve to moderate the respondents risk over time, that an order for ten years is appropriate. It is noted that the respondent is at present 38 years of age.

[52] For the respondent it is submitted:

1. It would be appropriate for the order to be less than the maximum ten-year period.
2. The respondent was assessed as having a medium-high risk of committing a further serious sexual offence. This assessment can be distinguished from the assessment in the case of Chief Executive of Department of Corrections v McIntosh (HC Christchurch, CRI 2004-409-000162, 8 December 2004), where the respondent was assessed as “an indiscriminate high-risk sex offender”. In that case a ten-year extended supervision order was made.
3. In this Court’s decision of Wesley-James v Chief Executive of the Department of Corrections (CA172/02, 9 November 2005) the appellant had been assessed as having a medium-high risk of committing a further serious specified sexual offence. This Court confirmed that there were no grounds for disturbing the seven-year period imposed in that case.
4. Section 1071(5)(b) was not specifically considered in the health assessor’s report, although the risk of re-offending was predicted to be of a serious sexual nature.
5. In light of s 1071(5)(c) the likely duration of risk was described in the health assessor’s report as being a medium risk up to the five-year level and increasing after that. This assessment was based on actuarial instruments.
6. The risk duration was found to be more difficult to predict based on the respondent’s conviction history: this would indicate offending of a sexual nature every 12 years.
7. An appropriate period for an ESO would be of the order of seven years.

Discussion

[53] We accept the thrust of the applicant’s submissions. The medical assessor’s report indicates that given the level of risk posed by the respondent, the seriousness of the harm that might be caused to victims and the likely duration of the risk as such, that a term of ten years imprisonment is the minimum period which is appropriate. That is because as the health assessor has evaluated the matter, individuals such as the applicant have a medium risk of sexual re-offending within five years release into the community with the risk increasing over the following period. That probability of serious sexual recidivism is based solely on static risk predictors. The applicant had a high risk of sexual recidivism when the health assessor looked at dynamic predictors of sexual recidivism.
[54] Although it is submitted for the applicant that the purpose of the orders is protective and rehabilitative rather than punitive, s 107I(1) makes clear the purpose is to protect members of the community. The ESO may have rehabilitative consequences for the offender. It may also have punitive consequences for the offender. However, the purpose of the ESO, as the section makes clear, is to protect members of the community. Thus in the ordinary case where an ESO is justified the CEDC should, and no doubt does, endeavour to obtain one before the release of the offender.

Decision

[55] For the reasons already given, the application for leave to appeal is allowed. The appeal is allowed. The Court orders that an ESO issue for a term of ten years.

Solicitors:
Crown Law Office, Wellington