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Woodhouse v Chief Executive of the Department of Corrections [2011] NZCA 333 (19 July 2011)

Court of Appeal of New Zealand

Woodhouse v Chief Executive of the Department of Corrections [2011] NZCA 333 (19 July 2011)

Last Updated: 26 July 2011

JUDGMENT OF THE COURT

Time to appeal is extended, but the appeal is dismissed.

REASONS OF THE COURT
(Given by Wild J)

Introduction

[1] Mr Woodhouse appeals against the making of an extended supervision order (ESO), but more particularly against its 10 year duration. The order was made by Judge Farish in the Christchurch District Court on 28 January 2010, at the end of a contested hearing. That was shortly before Mr Woodhouse was due to be released at the end of the second of two terms he had spent in prison, on both occasions following conviction for sexual offending against teenage girls.
[2] Judge Farish gave her reasons for making a 10 year ESO in a decision delivered some 10 months later, on 8 November 2010.
[3] That delay in the Judge giving her reasons explained why this appeal was filed several months out of time. In those circumstances, withholding the appeal was the sensible, indeed the responsible, course. The Crown accepted that and did not oppose the application to extend time to appeal. We extend time to 14 July 2010, when the notice of appeal was filed.
[4] Mr Woodhouse appeals against the ESO on the grounds that the Judge:

(a) Failed to assess the risk of Mr Woodhouse reoffending, first in relation to the factors set out in s 107F(2) of the Parole Act 2002, and then discretely against the criteria in s 107I(5) of the Act. The nub of this ground is that the Judge failed to assess risk, first, in deciding whether to make an ESO and then, having decided to make an ESO, separately when determining the duration of that ESO.

(b) Failed to factor in the restrictive nature of the type of victim the appellant was a risk to.

(c) Erred in characterising Mr Woodhouse’s offending as serious despite it being of a comparatively low level compared to the range of offences covered by the ESO legislation.

(d) Erred in assessing that the likely harm to victims was considerable despite that not being borne out in the sentencing notes relating to Mr Woodhouse’s offending.

(e) Erred in over-emphasising the duration of the risk despite the evidence being that the duration of risk would apply to all eligible offenders and not specifically to Mr Woodhouse.

(f) Erred in referring to the Court’s ability to review the duration of the order when this is not provided for in the applicable legislation.

Brief background

[5] This is the way Judge Farish recorded this in her decision:[1]

Mr Woodhouse is 52 years of age.

On 31 March 2006 the respondent was sentenced in the Christchurch District Court on one charge of indecent assault on a girl aged between 12 and 16 years and a charge of possession for supply of Temazepam. He was sentenced to seven years imprisonment, however, on appeal the Court of Appeal reduced the sentence to one of five years’ imprisonment. The five years’ was imposed on the charge of indecent assault.

Prior to this, on 18 June 1998, Mr Woodhouse pleaded guilty to a charge of rape. The rape related to his 15 year old step daughter and he was sentenced by His Honour Judge Erber to a period of six years’ imprisonment. Importantly, in relation to that offending Mr Woodhouse acknowledged that offending in contrast to the later offence and also acknowledged that the complainant was seriously affected by alcohol that she had drunk whilst in his company during the course of the day.

Whilst undergoing the first sentence of imprisonment Mr Woodhouse completed the Kia Marama sex offender treatment programme. Upon his release, however, he breached the conditions of his parole by having contact with the first complainant and was recalled. The latter offending occurred within 9 months of the end of his previous sentence.

In the present case the respondent had befriended a young prostitute who at the time was 15 years of age. She was also associating with another young person who was 18. The jury convicted him of indecently assaulting the complainant by plying her with drugs to overcome any resistance and either penetrating her anus with his penis or with an object.

Appeal ground (a): error in assessing risk correctly under each of ss 107F and 107I

[6] We do not accept this criticism of the Judge’s decision. Before considering the evidence that had been presented to her, the Judge reminded herself of her jurisdiction to make an ESO.[2] She cited from this Court’s decision in R v Leitch,[3] and then stated that the jurisdiction depended on:

The risk of relevant offending being both real and ongoing and one that cannot be sensibly ignored, having regard to the nature and gravity of the likely reoffending: Belcher v Chief Executive for the Department of Corrections;[4] and R v Peta.[5]

[7] Next, and turning to what must govern the duration of any ESO she made, the Judge said this:[6]

I remind myself, as well, that every extended supervision order must state the term of the order which must be reflective of the minimum period required for the safety of the community in light of the level of risk posed by the offender in committing a sexual offence against children or young persons, the seriousness of the harm that might be caused to the victims, and the likely duration of the risk.

[8] In [22]–[31] of her decision, Judge Farish then worked through the four s 107F factors before concluding:[7]

I am satisfied that an extended supervision order is necessary to protect the community, in particular young adolescent females, from Mr Woodhouse.

[9] The Judge then turned to the appropriate duration of the order, beginning this last part of her decision in the following way:[8]

The next issue I need to turn my mind to though is, what is the minimum period required to protect the community. Mr Allan’s second submission, or fallback position, was that if an extended supervision order was to be made that it should be at the lower end of the scale in terms of duration rather than at the 10 years which has been proposed by the clinical psychologist.

[10] She then referred to particular parts of the evidence she had heard in Court on 28 January 2010 from Mr Kirk Stenhouse. He was the registered clinical psychologist with the Psychological Services section of the Department of Corrections who had prepared the report (dated 14 September 2009) accompanying the respondent’s s 107F application for an ESO. Mr Stenhouse was cross-examined at some length before the Judge, who had also asked him a number of questions.
[11] This was the Judge’s conclusion:[9]

In considering the test under s 107I(5) of the Act, I am satisfied that the minimum period required here for the safety of the community is 10 years. This is in light of the risk posed by the offender remaining reasonably constant over that 10 year period without any significant change in his risk factors. I am also concerned that the sexual offending here is serious and that the seriousness of the harm likely to be caused to victims is considerable. His risk, as I have noted, remains reasonably static without significant input and change on his part. I am also comforted by the fact that if Mr Woodhouse does choose to change his attitude and engage with some positive treatment options, and can demonstrate that, that a Court would be more than likely to reconsider the extent of the order or the duration of the order, particularly with a positive psychologist’s report.

[12] So Judge Farish did consider the term of the ESO she had decided to make as a separate and subsequent exercise against the statutory criteria in s 107I(5), in the manner this Court has said is necessary.[10] As this Court pointed out in McDonnell,[11] the overlap between the s 107F(2) factors and the s 107I(5) criteria can mean that detailed reasons for the duration of the ESO are not needed. Thus, the comparative brevity of Judge Farish’s reasons for fixing the term of the ESO at 10 years was appropriate.

Appeal ground (b): failure to factor in the restrictive nature of the type of victim the appellant was a risk to

[13] This ground lacks any substance. When detailing the background in that part of her decision we have set out at [5] above, the Judge recorded that the victim of Mr Woodhouse’s 1998 offending was his 15 year old step-daughter, and the victim of his 2006 offending a 15 year old female prostitute. There are the following further references in the Judge’s decision to the type of person at future risk from Mr Woodhouse:

The nature of his further sexual offending is likely to include young adolescent females of or around the age of 13 to 16 years of age. These young women would either be known to Mr Woodhouse or introduced to Mr Woodhouse through family or friends, or indeed sought out by him as in the latter offending (teenage prostitutes).[12]

... there is a real risk that Mr Woodhouse would offend in a serious way against young adolescent females. ...[13]

Mr Woodhouse’s prior convictions demonstrate a sexual arousal to adolescent females. Despite receiving quite a lengthy sentence for his first offence within a very short period of time Mr Woodhouse had sought out two teenage sex workers rather than looking towards more age appropriate and adaptive relationships. This pattern indicates a clear proclivity for sexual behaviour with teenage girls.[14]

I am satisfied that an extended supervision order is necessary to protect the community, in particular young adolescent females, from Mr Woodhouse.[15]

[14] Moreover, in his report Mr Stenhouse expressed the view that Mr Woodhouse’s future offending “could involve both victims known to Mr Woodhouse through family or friends or strangers to him”.[16]
[15] Mr Stenhouse was questioned about this:[17]

17. Mr Woodhouse hasn’t committed any sexual offences against strangers, has he?
1. Um, no. Well, it depends how you define a stranger. The literature talks about intra-familiar victims, extra-familial victims and stranger victims. So Mr Woodhouse has an intra-familial victim in his step-daughter, an extra-familial victim in the current matter, but no stranger victims, no.
17. You’ve suggested there’s a likelihood that he could offend or would offend against strangers?
1. It wouldn’t be something that I’d be prepared to rule out in saying that.

Appeal ground (c): incorrectly characterising the offending as serious

[16] Judge Erber’s remarks when sentencing Mr Woodhouse for his 1998 offending included the following:[18]

Barry Ronald Woodhouse you pleaded guilty before depositions to a charge of sexual violation by rape. The facts are pretty simple. You are the stepfather of the victim who at the time was 15. You were 40. Now she apparently had had something to drink and on the day in question there is no doubt about it you plied her with the liquor and I think with a view to some sexual congress at a later time. You had intercourse with her without her consent in the back of a car and then returned home. The girl in question went to a friend’s house and complained and the police were involved and consequently you find yourself here.

... The question is not so much whether you should be imprisoned because that is inevitable but for how long. My view of the matter is that there are several aggravating and several countervailing mitigating circumstances. You were in a position of trust. You had known this girl for many years and it was a gross breach of trust. The effect on her and the family has been very bad indeed. The occurrence was planned to the extent that once you found her in a vulnerable situation you increased her vulnerability. Your ages are very disparate. This is not a case of two persons of a roughly similar age.

Judge Erber sentenced Mr Woodhouse to six years imprisonment. He refused to suppress his name.

[17] Judge Erber also sentenced Mr Woodhouse in 2006. He noted that Mr Woodhouse had befriended the 14 year old prostitute, driving her around in the course of her employment. The Judge then described how the victim, her 18 year old female friend, and Mr Woodhouse, had ended up in “what might be described as “three in a bed” sexual activity in (Mr Woodhouse’s) garage which was decked rather like a bedroom”.[19] The Judge described how Mr Woodhouse got both young women drunk and also supplied them with a Class C controlled drug Temazepam, so that they lost all sense of judgment. He then stated:[20]

The evidence was, and it was not contested, that you had asked the 14 year old for anal sex on occasions, which she had refused. The evidence was that she was anally penetrated either by your penis or by a dildo operated by you. So much is utterly clear from the jury’s verdict. The jury concluded they were not satisfied beyond reasonable doubt either that the victim did not consent or that you did not reasonably believe that she was consenting. Consequently the jury finding that the act itself had occurred, that the girl was under the age of 16, a conviction on the third count in the indictment was inevitable because of course the consent of an underage person is irrelevant to the commission of the offence of indecently assaulting a person under the age of 16.

[18] Judge Erber assessed the seriousness of the offending in these terms:[21]

Looking at the aggravating features here the nature of the indecency was gross. I agree with Mrs Orchard, in the canon of indecent assaults I would have thought that sodomy came very close to, if not at the very top of, the notion of indecent assault. The age of the complainant was just 14 years of age and she was obviously a child who was under the age of 16. She was vulnerable, not so much because of her age and her lifestyle but because of your plying her and her friend with liquor and drugs.

[19] Later he added:[22]

The Court however must act to discourage the use of [underage prostitutes] where they are free agents. This was a very serious sexual assault, whose only mitigating feature seems to me to be that the victim may well have consented or that you believed that she had consented. In these circumstances a custodial sentence is imperative and one which is for no short time.

I stress that you are not being sentenced on the basis of sexual violation, that is to say anal rape but for a serious indecent assault in circumstances aggravated by the proffering of drugs and in the further circumstance where you have a serious previous conviction for sexual activity with an underage girl.

[20] For the indecent assault and the supply of the Class C controlled drug Judge Erber imposed a total sentence of seven years imprisonment – five years for the indecent assault and an additional two years imprisonment for supplying the controlled drug.
[21] On appeal this Court reduced that sentence to five years, by making the two sentences imposed by the Judge concurrent. The Court stated:[23]

We agree with the Judge that this was a serious indecent assault. The victim was physically injured in the course of the assault which involved a gross invasion of her body. The assault occurred in the context of a 48 year old man supplying drugs to a 15½ year old girl in part, as the Judge said, to facilitate his sexual intent.

On the other hand the jury’s conclusion that they could not be satisfied that the assault occurred without her consent, or without his reasonable based belief in consent, reduces the seriousness of the offending somewhat.

[22] Judge Farish was thus entitled to characterise Mr Woodhouse’s offending as serious. That description cannot be gainsaid of his 1998 offending. Both the sentencing Judge and this Court considered the description true also of his 2006 offending.

Appeal ground (d): error in considering the likely harm to victims would be considerable, when the sentencing notes did not bear that out

[23] This ground focuses on the Judge’s assessment:[24]

... I am also concerned that the sexual offending here is serious and that the seriousness of the harm likely to be caused to victims is considerable. ...

[24] When sentencing Mr Woodhouse in 1998 Judge Erber commented of the offence:[25]

The effect on her [his 15 year old step-daughter] and the family has been very bad indeed.

[25] When again sentencing Mr Woodhouse in 2006, this is what Judge Erber said about the effect on the 15 year old victim:[26]

The victim impact report is brief. The victim claims that her mental wellbeing has been affected and she says “all the problems I now face” can be put down to this offending. As I said to Mr Rapley I do not accept that. I have no doubt that this young woman has a number of problems, many of which would have been with her whether or not this offence had been committed but certainly this offence has added to her problems which seem to be considerable.

[26] A fair summary of that statement is that the victim impact of Mr Woodhouse’s first offence was perhaps greater than that of his second. It does not follow that the Judge erred in assessing that the likely harm to victims would be considerable. Grooming and sexually offending against adolescent girls is self-evidently serious. In addition, Mr Woodhouse has demonstrated a proclivity to ply his victims with alcohol and drugs to enable him to get his way. The peril this would place potential victims in is obvious.

Appeal ground (e): error in over-emphasising the duration of the risk

[27] Mr Stenhouse assessed Mr Woodhouse using two psychometric instruments, the Automated Sexual Recidivism Scale (ASRS) and the Stable-2007. The ASRS is an actuarial tool comprehensively described in this Court’s decision in Peta.[27] The Stable-2007 assesses stable dynamic factors, that is factors which can change, but generally only slowly over a matter of years, or at least months. The Stable-2007 measures a number of items within five relatively stable domains: significant social influences; intimacy deficit; general self-regulation; sexual self-regulation and cooperation with supervision.
[28] In his report Mr Stenhouse recommended to the respondent that an ESO for the maximum available length of 10 years be applied for. He stated:[28]

...Research indicates that the risk of individuals with Mr Woodhouse’s assessed risk level remains stable over an extended period of time, with the risk remaining over a 10 year period. ...

In the previous paragraph of his report Mr Stenhouse had assessed Mr Woodhouse:[29]

... as being a medium-high risk of committing further sexual offences against adolescents under the age of 16, with his victims likely to be female teenagers who are known to him. ...

[29] Earlier in his report[30] Mr Stenhouse had explained that that risk assessment resulted from a combination of the medium-low risk assessed using the ASRS, and the high risk assessed using the Stable-2007.[31] Mr Stenhouse based his recommendation of an ESO with a 10 year term primarily on the ASRS. That was the tool that best enabled Mr Stenhouse to predict the likelihood of Mr Woodhouse committing a further sexual offence in the next five years, and in the next 10 years. Given Mr Woodhouse’s medium-low risk assessment on the ASRS, it gave a five per cent prospect of his being reconvicted for a sexual offence within the next five years, and an 11 per cent prospect within the next 10 years, ie a virtually level risk throughout the next 10 years.
[30] The Judge specifically questioned Mr Stenhouse about the basis of his recommendation that the ESO have a 10 year term. In addition to explaining the ASRS actuarial data we have just mentioned, Mr Stenhouse identified for the Judge several concerns specific to Mr Woodhouse. In summary these were:

• Although he had completed the Kia Marama Child Sex Offender Programme while in prison following his 1998 sentencing, Mr Woodhouse claimed to Mr Stenhouse that his victim had visited him several times in prison during the treatment programme (something Mr Stenhouse thought was “highly unlikely” to have occurred).[32]
• Although Mr Woodhouse was released on parole in April 2002 with “a very structured release plan”, he breached that plan. He was recalled to prison in August 2002 having visited the victim’s home to make contact with her. Mr Stenhouse commented to the Judge:[33]

... So in that instance he didn’t really engage with the support services that were there to try and assist him to manage his risk. ...

• Mr Woodhouse’s attitude when Mr Stenhouse interviewed him in August and September 2009 was not encouraging, in terms of the likelihood of future offending. Mr Stenhouse commented to the Judge:[34]

... On his current incarceration he is showing contempt really towards the justice system. So it suggests to me that he won’t try to engage in a collaborative relationship to manage his risk.

Earlier in the cross-examination Mr Stenhouse had been asked to elaborate on what he meant when, in paragraph 20 of his report, he referred to Mr Woodhouse’s “negative attitude during his current incarceration ...”. This was his answer:[35]

Okay so that information has come from my observations and the observations of the previous report writers in preparing reports for the New Zealand Parole Board that Mr Woodhouse has been disparaging towards treatment, has refused to look at his own offence chain again and look at the lead [up] to his second offence, the most recent offence, and look at the areas in which that safety plan fell apart. Mr Woodhouse also displayed general hostile attitudes towards Corrections generally, towards the justice system, towards psychologists generally. So the negative attitude speaks directly towards, his attitude towards further treatment given the fact that he breached his own safety plan by associating with young girls. And also to his general negative attitudes about his current incarceration.

[31] To summarise, we do not accept that Judge Farish over-emphasised the duration of the risk, or that she assessed it in a way that was wholly generic, rather than specific to Mr Woodhouse.

Appeal ground (f): inaccurate reference to the Court’s ability to review the duration of the ESO

[32] This last criticism focuses on the final sentence of the Judge’s decision in which she said:[36]

... I am also comforted by the fact that if Mr Woodhouse does choose to change his attitude and engage with some positive treatment options, and can demonstrate that, that a Court would be more than likely to reconsider the extent of the order or the duration of the order, particularly with a positive psychologist’s report.

[33] We do not accept this criticism. Although she did not specifically refer to them, Judge Farish obviously had in mind ss 107M and 107O which provide, respectively, for an ESO to be cancelled or varied or discharged by the Parole Board if circumstances change. We did not understand Mr Allan to be submitting that those two sections were the Judge’s justification for making a 10 year order, and we anyway do not think they were. An ESO is an intrusive and restricting order, some might say draconian. A Judge is entitled to take comfort from ss 107M and 107O, when making a decade long ESO.

Result

[34] As none of the six grounds of appeal has succeeded, the appeal fails and is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] Chief Executive of the Department of Corrections v Woodhouse DC Christchurch, CRI-2009-009-16656, 8 November 2010 at [2]–[6].

[2] At [20]. The jurisdiction to make an ESO is in s 107I(2) which provides: “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] R v Leitch [1998] 1 NZLR 420 (CA) at 428.

[4] Belcher v Cheif Executive for the Department of Corrections CA184/05, 19 September 2006 at [11].
[5] R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [8].
[6] At [21].
[7] At [32].
[8] At [33].
[9] At [36].

[10] In R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [61], and in McDonnell v Chief Exercutive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [96].
[11] At [98].
[12] At [23].
[13] At [24].
[14] At [27].
[15] At [32].
[16] Mr Stenhouse’s report at para 19.
[17] Notes of evidence 9/28–10/3, Case on Appeal 73–74.
[18] R v Woodhouse DC Christchurch, CRN 8009009000, 18 June 1998.
[19] R v Woodhouse DC Christchurch, CRI-2005-009-4403, 31 March 2006 at [4].
[20] At [6].
[21] At [14].
[22] At [20] and [21].
[23] R v Woodhouse CA117/06, 12 October 2006 at [28]–[29].
[24] At [36].
[25] This appears in the passage we have set out in [16] above.
[26] At [11].
[27] At [17]–[30].
[28] Mr Stenhouse’s report at [27].
[29] Mr Stenhouse’s report at [26].
[30] At [18].
[31] Those risk assessments are set out in [14]–[15] of the report.
[32] Mr Stenhouse’s report at [5].
[33] Notes of evidence 14/2–4, Case on Appeal at 78.
[34] Notes of evidence 14/4–6, Case on Appeal at 78.
[35] Notes of evidence 5/20–31, Case on Appeal 69.
[36] At [36].