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Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 (20 May 2019)

Last Updated: 29 May 2019

JUDGMENT OF THE COURT

1. Appeal allowed in part.
2. The extended supervision order is reduced from 10 years to five years.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

[1] Mr Kiddell appeals^[1] against an extended supervision order imposed on him under s 107I of the Parole Act 2002.^[2]
[2] The criteria for an order are that the appellant has or has had a pervasive pattern of serious sexual or violent offending and presents a high risk of committing a relevant offence in future.^[3] Mr Kiddell advances two claims:

• (a) He says that he has not had a pervasive pattern of serious sexual offending so as to qualify for an order at all.
• (b) In the alternative, he says that Judge Gibson was wrong to impose the maximum term for an ESO, ten years, because the evidence did not sustain the conclusion that he would remain at high risk of committing relevant sexual offences for that length of time. The evidence pointed to a term of somewhere between three and eight years.

Mr Kiddell’s history of sexual offending

[3] The account that follows is based on Mr Kiddell’s convictions in New Zealand and Australia, summaries of fact in relation to them and his own self-report. We note that he denies or minimises almost all of the offending.
[4] Mr Kiddell was convicted of obscene exposure in 1978. No summary of facts is available. His account was that a neighbour had seen him naked when walking around inside his parents’ house.
[5] In 1986, 1989 and 1990 Mr Kiddell was three times convicted in Australia for wilful exposure. His account is that he was swimming naked because he was part of a nudist community at the time.
[6] In 2011 Mr Kiddell was convicted in New Zealand for doing an indecent act in a public place. He was found guilty at trial. The Crown alleged that he undressed on a hillside by a beach where a teenage girl was swimming and masturbated while looking at her. He fled to Australia before sentencing.
[7] In 2015 he was convicted in Australia of committing an indecent act with a person under 10 years of age, who was known to him. He exposed his penis to a nineyear old girl in a swimming pool and masturbated. He asked her to touch his penis and referred to his ejaculate as “cream” which “little girls like to eat”. He grabbed the girl when she tried to swim away but released her. He asked her not to tell anyone. For this offending he served eight months’ imprisonment and was then deported to New Zealand where he was sentenced to intensive supervision and community work for the 2011 offence.
[8] In 2016 Mr Kiddell was convicted of indecent communication with a young person. He sent photos of his exposed penis to what he thought was a 13-year old girl in the Philippines. He described sexual activity he intended to have with her and claimed to have taught many young girls to have sex. The person he was communicating with was in fact a police officer. The police found 138 images and 14 video files of an objectionable nature on his computer. They included sexual activity between adults and children. He also pleaded guilty to possessing objectionable material. This offending earned him a sentence of two years’ imprisonment.
[9] Mr Kiddell’s history includes a number of other incidents, all occurring in Australia, that did not result in convictions. In 2000 he was reportedly seen masturbating on a hotel balcony in view of schoolchildren. In 2013 he was allegedly seen masturbating in bushes at a beach, in view of the complainant. He was charged with indecency but no conviction resulted. In 2015 his god-daughter complained to police that he had sexually assaulted her on four occasions in 2008−2009, when she was aged 8 or 9. The allegation was that he touched her vagina and asked her to touch him. A police report records that he was charged with aggravated indecent assault, but no convictions resulted.
[10] Mr Kiddell was born in 1957. It will be seen from his conviction history that he has continued to offend frequently at a relatively late stage in life.

The ESO application

[11] The ESO application was brought on 6 November 2017. It is not in dispute that Mr Kiddell was eligible, in that he was subject to release conditions associated with a sentence for a relevant offence (being his 2016 convictions).^[4]
[12] The application was accompanied by a health assessor’s report written by Ms Sheila Ayala, a Corrections psychologist. Mr Kiddell commissioned his own report from Dr Annabel Clarke, a registered clinical psychologist. Their reports addressed the questions whether Mr Kiddell exhibited traits or behavioural characteristics listed in s 107IAA(1) and whether there is a high risk that he will in future commit a relevant sexual offence. Both experts gave oral evidence before Judge Gibson at the hearing on 9 May 2018.

The District Court decision

[13] The Judge reviewed Mr Kiddell’s history and the evidence. He found it irrefutable that Mr Kiddell has a pervasive pattern of sexual offending. Mr Kiddell also presents a high risk; he has an intense drive to commit relevant sexual offences, exhibits a proclivity to offend and limited capacity for self-regulation, tends to minimise almost all of the offending, and lacks remorse or responsibility.^[5] The Judge recorded that both psychologists thought there was a high risk of Mr Kiddell committing a relevant sexual offence in future.
[14] The Judge noted that Mr Kiddell had received limited treatment. It appeared that he was ineligible for the SAFE programme run by Corrections. He had some limited support in the community and had made some treatment gains, but the risk of offending remained high.
[15] With respect to the term of the order, the Judge opted for 10 years because Mr Kiddell’s offending had escalated and continued despite his age.^[6] His conviction history suggested that he would remain at risk even if he did not offend for five years, the term recommended by Dr Clarke.

The statutory tests

[16] Section 107I of the Parole Act establishes that the purpose of an ESO 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”. It establishes jurisdiction to make an ESO:

107I Sentencing court may make extended supervision order

...

(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(2A), that—

(a) the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and

(b) either or both of the following apply:

(i) there is a high risk that the offender will in future commit a relevant sexual offence:

(ii) there is a very high risk that the offender will in future commit a relevant violent offence.

...

[17] We make a number of points about decision-making under this provision. First, the court is concerned with present or past behaviour, which determine an eligible offender’s susceptibility to an ESO, and future risk, which ultimately determines whether an ESO ought to be made. These are distinct criteria, both of which must be satisfied.
[18] Second, s 107I presumes that the health assessor’s report may be relevant to both pervasive pattern and future risk. That is so because the court must consider the report when addressing both criteria.
[19] The content of the report is prescribed. Section 107I refers to s 107F(2A), which states that the report must address whether there is a high risk of the offender committing a relevant sexual offence and whether the offender exhibits certain riskrelated traits or behavioural characteristics listed in s 107IAA(1), which in turn provides:

107IAA Matters court must be satisfied of when assessing risk

(1) A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—

(a) displays an intense drive, desire, or urge to commit a relevant sexual offence; and

(b) has a predilection or proclivity for serious sexual offending; and

(c) has limited self-regulatory capacity; and

(d) displays either or both of the following:

(i) a lack of acceptance of responsibility or remorse for past offending:

(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.

The assessor’s opinion on these matters may inform the court’s conclusions on both of the s 107I(2) criteria. By way of illustration, an assessor may conclude that an offender exhibits a predilection or proclivity for offending because he has a past pattern of behaving in that way.^[7]

[20] Third, information contained in the report need not qualify as admissible evidence in criminal or civil proceedings, for the assessor may take into account any statement of the offender or any other person concerning any conduct of the offender, whether or not it constitutes an offence or has been the subject of charge or conviction.^[8] Consistent with that, the court is not confined to offending that has resulted in convictions and it may consider any evidence or information that it thinks fit, whether or not admissible in a court of law.^[9]
[21] Fourth, the terms “pervasive pattern” and “serious sexual offending” and “high risk” indicate that the assessment requires judgments of quality and degree. The decision-making exercise is fact-specific and evaluative.
[22] Fifth, the term “serious sexual offending” in s 107I(2)(a) is not a term of art but should be given its ordinary meaning. It is not confined to relevant sexual offences listed in s 107B(2).^[10] The adjective “serious” should also be given its natural meaning, viewed against the statutory purpose of protecting the community from those who pose a real and ongoing risk of sexual offending.^[11] The relevant sexual offences listed in s 107B(2) are capable of being “serious” but are not exhaustive.^[12]
[23] Sixth, a pervasive pattern is one that is sufficiently characteristic of the offender to serve as a predictor of future conduct.^[13] We make several points about this:

• (a) In ordinary usage, to be pervasive is to be present throughout.^[14] The adjective is here used in connection with the behaviour of a person, and the legislation also identifies certain relevant traits or characteristics: an intense drive to commit relevant sexual offences, a predilection for serious sexual offending, limited self-regulatory capacity and an absence of responsibility or an absence of understanding of victim impact.^[15] It is for these reasons that we have defined a pervasive pattern simply, as a pattern that is characteristic of the offender.
• (b) The pattern must be sufficiently pervasive to serve as a predictor of future conduct; we adopt that purposive standard because the pattern determines whether the offender is susceptible to an ESO.
• (c) In ordinary usage “pattern” connotes regularity but a pattern may take any form or sequence. A pattern that includes relevant but less serious conduct may be found pervasive.^[16]

[24] Seventh, when considering whether the offender presents a high risk of committing relevant sexual offences in future, the court will take into account anything that may exacerbate or mitigate risk, such as community support and the offender’s response to any treatment that has been undertaken. These considerations are also relevant to the term of an ESO, as noted below.
[25] Eighth, the court must be “satisfied” that the criteria in s 107I(2) and s 107IAA have been established. There is no onus or standard of proof; rather, the court must make up its mind on the evidence.^[17]
[26] Ninth, the court “may” make an ESO once satisfied that the statutory criteria have been met; that is, it has a discretion to refuse an order.^[18]
[27] Finally, an ESO engages BORA-protected rights. This Court has previously held that the ESO regime creates a retrospective double penalty, so contravening s 26 of the New Zealand Bill of Rights Act 1990, but nonetheless must be given effect under s 4 of that Act.^[19] The Supreme Court has recognised that the Parole Act’s statutory purpose requires that courts not be denied clearly relevant information when deciding whether an offender is eligible under s 107I for an ESO.^[20] But when deciding whether to make an ESO, and for how long, courts must recognise that the order may impinge substantially upon the offender’s freedom of movement and association.^[21] These rights must be borne in mind when deciding both whether the offender has or had the necessary pervasive pattern of serious sexual offending and whether the offender presents a high risk of future serious relevant offending.

A pervasive pattern of serious sexual offending?

[28] Mr Herbke, for Mr Kiddell, submitted that the only offending that might qualify was that which was the subject of convictions and only one conviction, that for possessing objectionable material, could be considered serious sexual offending. Most of the other offending was non-contact offending. Much of it resulted in community-based sentences. The offence of committing an indecent act with a person under 10 years of age is concerning, but there was no sexual contact and Mr Kiddell received a short sentence of 16 months’ imprisonment. The offence of indecent communication with a young person was also a non-contact offence and the young person was fictitious so there was no actual victim. He submitted that there can be no pattern, let alone a pervasive pattern, of serious sexual offending in the circumstances.
[29] Mr McCoubrey, for Corrections, submitted that the totality of Mr Kiddell’s behaviour could be taken into account when considering whether or not there is a pervasive pattern. He submitted that much of the offending was serious. For example, the 2011 incident involved following a 16-year-old victim who was swimming alone and masturbating in front of her. The 2015 offending was sexual conduct with a child; the victim was only nine years old and the appellant repeatedly asked her to touch his penis. He also grabbed her when she tried to swim away. The 2016 offence of indecent communication with a young person involved the intended sexual exploitation of a young female. The offence of possessing objectionable material (child pornography) was plainly serious. As this Court held in Holland,^[22] an arbitrary distinction should not be drawn between contact and non-contact offences. The consumer of such material shares responsibility for the actual sexual exploitation of children, and in this case the sentencing judge described the offending as serious.^[23]
[30] We agree with Judge Gibson that Mr Kiddell had and continues to have a pervasive pattern of serious sexual offending. The expert evidence supports that conclusion. Viewed overall, he has a longstanding history of sexual offending involving children and young persons. This offending has been sufficiently frequent and regular to qualify as a pattern. Age has not reduced the frequency or seriousness of his offending. Not all of it is serious, but we accept Mr McCoubrey’s submission that the offences of sexual conduct with a child, indecent communication and possessing objectionable material qualify, as does the 2008−2009 allegation of indecent assault. It is true that much of his offending was non-contact, but his history indicates that he will escalate to contact offending if the victim does not resist.

A high risk of committing relevant sexual offences in future?

[31] Mr Herbke did not contend directly that Judge Gibson was wrong to find a high risk that Mr Kiddell would commit further relevant sexual offences in future. Counsel focused rather on the term of the order. We nonetheless address the question of risk.
[32] Both expert witnesses agreed that the risk is high. They agreed that Mr Kiddell exhibits all of the relevant traits or characteristics.^[24] Ms Ayala considered that there is a high risk that he may engage in relevant sexual offending within 10 years of release. His most likely victims could be females under the age of 16 and his most likely reoffending would involve him committing indecent acts in the presence of an identifiable victim. Given access, he could indecently assault or engage a child in a sexual act.
[33] Dr Clarke’s opinion was in similar terms. She advised that:

... the risk of Mr Kiddell committing a further relevant sexual offence while in the community is high. It is pertinent that Mr Kiddell’s offending has progressively escalated in severity over time, despite sanctions and his increasing age. If Mr Kiddell were to re-offend, the most likely victims would be females under the age of 16. However, he may also offend against pubescent or adult females. Victims may be known or unknown to him, and offending may occur in a public place or on the internet. The most likely reoffending scenario appears to be non-contact sexual offences such as indecent exposure against a female under 16, or use of objectionable publications of females under 16. However, he may also commit a contact offence under some circumstances ...

(Emphasis original.)

[34] We accept these assessments.
[35] The experts also agreed that Mr Kiddell needs intensive treatment for sexual offending but has not received it. He has been recommended for the SAFE programme but was twice refused entry. He had also been refused entry to an intensive rehabilitation programme for serving prisoners. We are told that he is part way through one-on-one treatment with a Corrections psychologist. Dr Clarke considered that he has made positive changes in his life and has made some progress, and Ms Ayala thought he would benefit from external support to build a pro-social support network and develop emotional regulation skills. Neither expert suggested that his support network and treatment will sufficiently reduce his risk in the short term. Dr Clarke considered rather that the risk will reduce gradually over time given participation in intensive treatment and the effects of ageing.
[36] For these reasons we consider that the criteria for an ESO were satisfied and the Judge was right to make one.

The appropriate term of the ESO.

[37] Section 107I(5) provides that the term of the order must be the minimum necessary for community safety 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.

[38] Mr Herbke submitted that neither expert supported the ten-year term adopted by the Judge. Ms Ayala considered that three years was too short and a period of up to eight years offence-free would be a good indicator of reduced risk. Dr Clarke suggested five years. She relied on the VRS:SO scale to predict that if he remained offence-free for five years his risk would reduce to average levels. She considered that that period would suffice to monitor his progress in treatment and his adherence to release and safety plans.
[39] Mr McCoubrey submitted that the Judge considered this evidence and it was open to him to conclude that Mr Kiddell’s risk would not reduce to acceptable levels in fewer than ten years.
[40] We have summarised the Judge’s reasons for choosing a 10-year term at [15] above. His reasons did not reflect potential gains from treatment. This is not a case in which it can be said that treatment has been tried and failed. Mr Kiddell has received very little treatment until recently. The evidence indicates that he has made some gains from such treatment as he has received. That being so, it is reasonable to assume that so long as his risk remains high he will continue to receive and benefit from appropriate treatment during the term of an ESO. We add that he has some limited pro-social support. Finally, we observe that should his risk remain high at the end of the ESO it is open to Corrections to apply for an extension.^[25]
[41] For these reasons we consider that the appeal is well-founded on the alternative ground. In our opinion the evidence justified a term of five years.

Result

[42] The appeal is allowed in part. We decline to quash the ESO but we reduce its term from 10 years to five years.

Solicitors:
Barter Law, Auckland for Appellant
Crown Law Office, Wellington for Respondent

^[1] Under s 107R of the Parole Act 2002, the appeal is treated as an appeal against sentence.

^[2] Chief Executive of the Department of Corrections v Kiddell [2018] NZDC 12640 [ESO Decision].

^[3] Parole Act, s 107I(2).

^[4] Parole Act, ss 107B and 107C(1).

^[5] ESO Decision, above n 2, at [13]−[19].

^[6] At [24]−[25].

^[7] Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 [Holland (CA)] at [41]−[42].

^[8] Parole Act, s 107F(3).

^[9] Section 107H(2). See also Holland (CA), above n 7, at [42].

^[10] Holland v Chief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1 NZLR 771 [Holland (SC)] at [13]−[14].

^[11] Holland (CA), above n 7, at [44]; and Holland (SC), above n 10, at [13].

^[12] Holland (CA), above n 7, at [43].

^[13] This standard is similar but not identical to that adopted in Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [46].

^[14] See Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2008).

^[15] These are used in s 107IAA, which is concerned with risk of future offending, but as explained at [19] a past or present pattern of serious sexual offending may evidence the same characteristics.

^[16] Chief Executive of the Department of Corrections v Popata [2017] NZHC 2343 at [33].

^[17] Holland (CA), above n 7, at [12] citing R v White (David) [1988] NZCA 55; [1988] 1 NZLR 264 (CA) at 268; R v Leitch [1998] 1 NZLR 420 (CA) at 428; and Chief Executive of the Department of Corrections v McIntosh HC Christchurch CRI-2004-409-162, 8 December 2004 at [20]–[21].

^[18] Popata, above n 16, at [9].

^[19] Belcher v Chief Executive of the Dept of Corrections [2006] NZCA 262; [2007] 1 NZLR 507 (CA). This remains the position following the Supreme Court decision in Holland (SC), above n 10, at [18].

^[20] Holland (SC), above n 10, at [19].

^[21] Holland (CA), above n 7, at [45].

^[22] At [48].

^[23] New Zealand Police v Kiddell [2017] NZDC 8513 at [5]–[6].

^[24] Parole Act, s 107IAA(1).

^[25] Parole Act, s 107F(1)(b).