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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI 2004-404-98
BETWEEN THE CHIEF EXECUTIVE OF THE
DEPARTMENT OF CORRECTIONS
Applicant
AND
THEODORE PATRICK SUBRITZKY
Respondent
Hearing: 14 October 2005
Appearances: M Woolford for Applicant
M Pecotic for Respondent
Judgment: 3 November 2005 at 11.56am
JUDGMENT OF LANG J
[on application for extended supervision order]
Solicitors:
Meredith Connell, PO Box 2213, Auckland for Applicant
M N Pecotic, PO Box 6379, Auckland for Respondent
THE CHIEF EXECUTIVE OF THE
DEPT OF CORRECTIONS V SUBRITZKY HC AK CRI 2004-404-98 3
November 2005
[1] The respondent, Mr Subritzky, has been convicted
on numerous occasions of
a wide variety of offences. These include four convictions for raping a female aged
less than 12 years,
and five convictions for indecent assault on a female aged less
than 12 years.
[2] Mr Subritzky has served several terms of
imprisonment as a result of his
offending. He was most recently released on 16 June 2004. At that time, he was
released on parole
on conditions imposed by the Parole Board under s 29 of the
Parole Act 2002 (the Act). Those conditions applied from the date of
his release
unt il 6 April 2005.
[3] On 15 March 2005, the Chief Executive of the Department of Corrections
(the Chief Executive)
applied under s 107F of the Act for an extended supervision
order to be imposed on Mr Subritzky. He brings the application on the
ground that
he considers that Mr Subritzky is likely to commit further offences of a sexual nature
against children, and in particular
young girls, unless such an order is made.
[4] Mr Subritzky opposes any order being made. He denies that he has ever
committed
any of the offences of which he has been convicted. He contends that
there is no need for an extended supervision order to be made
because, never having
committed sexual offences before, there is no risk that he will commit such offences
in the future.
[5]
At the end of the hearing I made an extended supervision order and directed
that it was to commence on 14 October 2005 and was
to enure for a period of ten
years. I now give my reasons for making those orders.
Jurisdiction
[6] The jurisdiction to make
extended supervision orders arose as a result of The
Parole (Extended Supervision) Amendment Act 2004, which came into force on 7
July 2004. That Act established a framework within which the Chief Executive may
apply to the sentencing Court (in the present case
this Court) for an extended
supervis io n order. The effect of such an order is to place the offender in question
under supervision
for a defined term at the conclusion of the existing term of
imprisonment, or release conditions.
[7] The aim of the legislation
is aptly summarised in s 107(I)(1):
The purpose of an extended 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.
[8] The new regime has already been the result of detailed discussion in several
cases in both this
Court and the Court of Appeal: see e.g. Chief Executive of
Department of Corrections v McIntosh Unreported High Court, Christchurch
CRI-
2004-409-162 John Hansen and Panckhurst JJ, 8 December 2004 (HC)); Chief
Executive of the Department of Corrections v Steven
Unreported High Court,
Rotorua Registry CRI-2004-463-130 27 April 2005 Allan J (HC)); Grieve v The
Chief Executive of the Department
of Corrections (CA150/05 30 August 2005.).
[9] These cases confirm, as is in any event evident from the wording of the
legislat ion, that the purpose of the jurisdiction is protective.
Extended supervision
orders are designed to protect children and young persons from the risk of future
sexual abuse by recidivist
offenders.
Is Mr Subritzky an eligible offender under the Act?
[10] The Court may make an extended supervision order only in
respect of
persons who are "eligible offenders" in terms of s 107C of the Act. That section
provides as follows:
107C
Meaning of eligible offender
(1) In this Part, eligible offender means an offender who--
(a) has been sentenced
to imprisonment for a relevant offence, and that
sentence has not been quashed or otherwise set aside; and
(b) has
not ceased, since his or her latest conviction for a relevant offence
that has not been quashed or otherwise set aside, to
be subject to a sentence
of imprisonment (whether for a relevant offence or otherwise) or to release
conditions or
detention conditions (whether those conditions are suspended
or not); but
(c) is not subject to an indeterminate
sentence.
(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.
[11] "Relevant offences" are defined
in s 107B of the Act. These include
offences against s 128 of the Crimes Act (sexual violation by rape) where the victim
of the offence was under the age of 16 years at the time of the offence, and offencds
under s 133 of the Crimes Act 1961 (indecent
assault on a girl under the age of 16
years). These are relevant offences by virtue of ss 107B(2)(a) and (g) respectively.
[12]
Mr Subritzky qualifies as an eligible offender because he has been sentenced
to imprisonment for relevant offences (indecent
assault on a girl under 12 years of
age) and those sentences were not quashed or otherwise set aside. In addition, he
was subject
to release conditions at the time the present application was made and
was not subject to an indeterminate sentence prior to his
release. The fact that Mr
Subritzky's offending occurred prior to the new regime coming into force does not
matter, because s 107C(2)
expressly provides that the Act is to have retrospective
effect.
[13] Similarly, although Mr Subritzky is not subject to release
conditions at the
present time, this does not affect the Court's ability to determine the present
applicat ion. Section 107I(3) provides
that an extended supervision order may be
made 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. The present
application was filed on 15 March
2005, and in that time Mr Subritzky was subject to release conditions. He was
therefore an eligible
offender at the time the application was filed.
Should an extended supervision order made?
[14] The jurisdiction to make
an order is contained in s 107I(2) of the Act, which
provides as follows:
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
releva nt offences referred to in section 107B(2) on ceasing to be an eligible
offender.
[15] For the
purpose of s 107I(2) the Court needs to be "satisfied" that the
offender is likely to commit any of the offences referred to in s 107B(2) of the Act
upon ceasing to be subject
to the existing term of imprisonment or release
condit ions. This calls for an exercise of judgment by the Court, and means no more
than that the Court must "make up its mind" that the offender is likely to commit any
of the relevant offences referred to in s 107B(2)
on ceasing to be an eligible
offender: See R v Leitch [1998] 1 NZLR 420 at p 428 (CA); Chief Executive of
Department of Corrections v MacIntosh (supra at para [21]) and Chief Executive of
Department of
Corrections v Steven (supra at para [12])
History of offending
[16] In determining whether or not Mr Subritzky is likely to
commit relevant
offences in the future, the Court is entitled to take into account his past conduct. As
this Court noted (at para
[31]) in the McIntosh case, the best of what the future is
likely to hold may be found in the past.
[17] Mr Subritzky is now
63 years of age. His criminal history extends back to
1961 when he was convicted on a charge of burglary and sentenced to Borstal
training. He then committed dishonesty offences during the mid-1970s and 1980.
His first convictions for sexual offending were entered
on 21 November 1991, when
he was sentenced to 7 years and 11 months imprisonment on three charges of raping
a female under 12 years
of age, on one charge of indecently assaulting a female
under 12 years of age, and on one charge of raping a female under the age
of 12
years. Those offences occurred on 24 May 1989, 1 January 1990, and 1 May 1990
respectively.
[18] Allied to these convictions
were convictions of criminal harassment,
threatening to kill, and contravening a protection order, which were also entered in
November
2001. These apparently had their genesis in harassment by Mr Subritzky
of his former wife and her partner.
[19] During the hearing
on 14 October 2005 I was provided with copies of the
sentencing notes in respect of the three charges of rape and the charge of indecent
assault in respect of which Mr Subritzky was sentenced to an effective term of eight
years imprisonment on 21 November 1991. I was
also provided with the judgment
of the Court of Appeal delivered on 2 April 1992 (under CA435/91) in which Mr
Subritzky's appeal
against the sentences imposed upon him in relation to those
charges was dismissed.
[20] These materials reveal that Mr Subritzky
was convicted following a defended
trial by jury in respect of sexual offences involving two complainants. The first
complainant,
who was the subject of multiple offending between May 1989 and May
1990, was aged eight and nine years at the relevant times. The
second complainant
was seven years of age at the time of the offences against her. The complainants
were Cambodian sisters who had
come to New Zealand with their family as refugees
in 1986. The sentencing Judge noted that Mr Subritzky had "literally taken them
under [his] wing almost from the moment they arrived in New Zealand" and that he
had also given them a great deal of help and encouragement
as well as probably
some financial assistance. All of the violation offences took place in Mr Subritzky's
ho me whilst the indecent
assault occurred in his car.
[21] The Court of Appeal noted that the case had several aggravating features
including the fact
that Mr Subritzky had been in a position of trust and authority at
the time that the offences were perpetrated. The offences were
also repetitive over a
period of 12 months and involved two complainants. On the other side of the coin,
the Court noted that there
was no previous offending of a sexual nature and that Mr
Subritzky had provided extensive help and encouragement to the complainant's
family following their arrival in New Zealand, and also to others over a considerable
period of time. He also had excellent personal
references. Of some significance also
in the present context is the fact that the probation report stated that there was an
apparent
absence of propensity for this type of offending.
[22] The convictions in respect of which Mr Subritzky served his most recent
term
of imprisonment followed a defended trial by jury in the Manukau District Court.
Mr Subritzky faced four charges of indecent
assault on a girl aged less than 12 years,
and he was found guilty on each charge. He was committed to this Court for
sentence and
was sentenced to concurrent terms of 4 years imprisonment on each
charge on 9 August 2002. The sentencing Judge, Harrison J, summarised the facts as
fo llo ws:
[3] The facts, as summarised by the police, are as follows. At the time
of these offences the complainant was
10 years old. She is a Vietnamese
national. Her mother lived with you for about two years in the relationship
of
marriage. In November 2000 you separated. During this time you
occupied the role of stepfather to the complainant. Following
the separation
you continued to look after her during weekends while her mother was at
work.
[4] The
particular offences occurred as follows:
[a] First, some time in early July 2000 you were lying under the
blankets in a double bed with the complainant and her six-
year-old cousin. She was
lying on her side, wearing
pyja mas. You placed your hand on top of her. You then
rubbed your penis between the cheeks of her bottom on the
outside of her clothing from behind;
[b] Second, about two weeks later the complainant jumped into
bed with her mother and you. Her
mother later left the bed
to go to work. Again, in the same way as before, you rubbed
your penis against the complainant's bottom on the outside
of her clothing from behind, while she was
lying on her side.
The complainant was afraid and immediately left the bed;
[c] Third,
on 2 December 2000, the complainant was sitting on
a sofa watching television. You began to cuddle her, before
pressing your penis into her stomach. Later you rubbed your
penis against her bottom.
You said to her "I've got you
wher e I want to";
[d] Fourth, on 3 December 2000, the
next day, the complainant
was again watching television. She was wearing jeans at the
time. Again you approached her. You began to push your
penis between the cheeks of her bottom. She asked
you to
stop but you continued.
[23] In sentencing Mr Subritzky, Harrison J considered imposing a term
of
prevent ive detention but ultimately concluded that an appropriate sentence was the
finit e term of 4 years imprisonment on each
charge. In reaching this conclusion,
Harrison J made the following comments, which are of some relevance in the present
context:
[16] If I had been sentencing you on 30 June this year, I would have
taken into account these factors, all of which
have been discussed by Mr
Kaye:
[a] First, the nature of your offending. In 1989 and 1990, as I noted, you
committed a series of serious sexual offences. On 24 May 1989 you
committed three rapes of a female under
12 for which you were
sentenced later to a term of imprisonment of just under eight years
commencing
on 21 November 1991. Then on 1 January 1990 you
indecently assaulted a female under 12. On 1 May 1990, a few
months later, you again raped a female under 12. For those two
offences you received sentences of six months
and four years
imprisonment respectively. All of these sentences commenced on 21
November 1991. The term
of eight years imprisonment imposed
befor e the increase in tariff offences in 1993 is evidence of the
severity and viciousness of those crimes in 1989 and 1990. You
wer e in prison for much of the 1990's. Mr Kaye advises
from the
bar today that you were released on parole in February 1997. Over a
period of six months in the latter half of 2000 you committed a series
of serious
sexual offences upon a 10 year old girl who was in your
care and control. I accept Mr Kaye's submission, and it is
most
important that I do so, that the offending for which you now face
sentence is not of the same magnitude
as your crimes in 1989 and
1990; in fact, while serious, it is in a different league. Nevertheless,
what
is significant for these purposes is that both sets or series of
offences are of a serious nature, as is marked by
the maximum
eligible sentence.
[b] Second, Mr Subritzky, you have targeted a fixed category of victims
for both sets of offences, 10 years apart. They are girls, and
occasionally boys, under 12 years of age.
That, in my judgment,
discloses a distinct predatory characteristic. Dr Himadri Seth, a
for ensic or
consultant psychiatrist, prepared a report for the Court on
31 May 2002. Dr Grant Galpin, another forensic psychiatrist,
prepared a further report for the Court on 1 August 2002. Both
confir m that you are suffering from paedophilia,
limited to females
of a pre-pubescent age. I have some evidence about the impact of
your crimes on your
victims in 1989 and 1990. The effects were
obviously severe. Fortunately, the impact on the complainant on this
occasion was otherwise;
[c] Third, you have not responded to any previous rehabilitation efforts
for one reason it is because you refuse to acknowledge the nature
and extent of your personality or behavioural
disorder or to
acknowledge or take responsibility for your offending.
Consequently, the pre-sentence
report notes, the psychiatrist reports
confir m, and Mr Kaye acknowledges, your motivation to change is
low. It is, as Ms Mitchell said today, because you want to blame
ever ybody else but yourself. I repeat that it
is obvious to me that
you are suffering from a serious personality disorder. However, Mr
Subritzky, if
you are motivated to act according to the Christian
beliefs which you expound and to indulge in some insight and
acknowledge your own wrongdoing, there are appropriate sexual
offender programmes available to assist
you in rehabilitation;
[d] Fourth and finally, following from the previous factor, is that the
prognosis
for the future is not good. Dr Galpin advises that your
convictions support a strong sexual interest in children. That
factor,
together with your refusal to engage in treatment, suggests that you
will repeat this type of
offending if and when the opportunity arises.
Dr Galpin also notes concern about your behaviour, to which Ms
Mitchell has referred today, in grooming young people, and your
difficulty with anger and lack of empathy or
remorse towards your
victims. Both Dr Seth and Dr Galpin are of the opinion that you
currently present
a serious risk of re-offending if you are released
into the community. Neither of them, however, can forecast what
will happen in the years ahead.
[24] Harrison J concluded his sentencing remarks with the following words:
[25] I note that you have already served one year. I repeat my doubts
about whether that term of four years, even
if served to the full, will
either protect society or allow you time to undertake effective
rehabilitative
steps, if ever you come to terms with your own
behavioural disorder. I trust that the appropriate authorities take into
careful account these factors and the psychiatric
reports when
considering any application by you for parole within the four year
period.
[26]
Mr Subritzky, I conclude with these words. If you continue to live
in denial, you will almost certainly offend again
sexually against a
young child. And if you do that you will almost certainly be
sentenced to a term of
preventive detention. In that event, the
minimum non-parole period will be well above five years. Stand
down.
Health assessor's report
[25] Section 107F(2) of the Act requires any application for an extended
supervis io n order
to be accompanied by a report by a health assessor that addresses
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.
[26] In the present case the Chief Executive has included with the application a
detailed report by Mr Cecil
Wiehahn, a senior psychologist with the Department of
Corrections. Mr Wiehahn is a health assessor in terms of s 4 of the Sentencing
Act
2002. At the hearing today I was also provided with a supplementary report by Mr
Wiehahn. That report deals specifically with
the issue of Mr Subritzky's ability to
control his sexual impulses. In addition, Mr Wiehahn amplified the matters referred
to in
his reports in oral evidence and cross-examination at the hearing.
[27] The reports have been written without input from Mr
Subritzky, because he
declined to be interviewed in relation to them. As a result, Mr Wiehahn was
required to prepare his assessments
based on the information held in Mr Subritzky's
file.
[28] Mr Wiehahn's first report summarises Mr Subritzky's personal background
and also his criminal offending. It records that Mr Subritzky denies any sexual
wrongdoing and that he plans to appeal against the
four convictions in respect of
which he served his most recent sentence of imprisonment.
[29] Mr Wiehahn notes also that, despite
being offered treatment interventions,
Mr Subritzky has not attended any programmes or individual counselling to address
his offending
needs. This is because he maintains that he is innocent and therefore
does not need treatment. He has consistently indicated to his
probation officer that
he did not need, and would not attend, psychological intervention after his release in
June 2004.
[30]
In assessing Mr Subritzky's potential to re-offend, Mr Wiehahn considered
both clinical risk factors and the results of an actuarial
instrument. This required him
to consider both static and dynamic risk factors for sexual recidivism. He considers
that the use of
such multi-method assessment strategies is the best approach to
permit the determination of convergence among risk factors and
to allow the
assessment of independent contributions.
[31] The Static-AS instrument is an actuarial instrument developed for
a New
Zealand offender population, and is designed to estimate the probability of sexual
and violent recidivism among male adults
who have already been convicted of at
least one sexual offence against a child or non-consenting adult. It is based on an
actuarial
tool developed in North America and the United Kingdom. It has been
found to show moderate predictive accuracy for sexual recidivism.
It is scored from
the offender's official criminal record, and contains seven items that assess static
factors relating to risk.
It has been found to accurately classify offenders into four
risk categories from low to high risk of sexual recidivism.
[32] Mr Subritzky was assessed with a high
score on this instrument. Mr
Wiehahn says that New Zealand research has shown that individuals with similar
scores have
been found to have a high risk of sexual re-offending within five years
of being released into the community, with this risk increasing
over ten years.
[33] Although Mr Subritzky is now 62 years of age, Mr Wiehahn does not
consider that this is a mediating factor.
This is because the nature of his offending
relies on "grooming and trust rather than strength, stamina or personal appearance".
He considers that this is borne out by the fact that Mr Subritzky was 58 years of age
when he committed the offences for which he
was most recently imprisoned.
[34] Mr Wiehahn's conclusion, based both on his clinical judgment and on file
and interview information,
is that Mr Subritzky is likely to commit further sexual
offences. These may range in level of intrusiveness from frotteur-like actions
to
rape, in a predatory or grooming manner, against female children and adolescents,
strangers and relatives, under the age of 16
years. He is also particularly likely to
offend against people of Asian descent, a group that tends to place more trust in
those
of an older age group. He believes that Mr Subritzky's increasing age may in
fact increase his opportunities against his Asian victim
group. He believes that
"there is a high risk" of Mr Subritzky's committing a further serious sexual offence
while in the community.
Decision
[35] There are several disturbing features to Mr Subritzky's past offending. The
first is that he has committed
several sexual offences against young women between
May 1989 and July 2000. Some of these, and in particular the 1991 convictions
for
rape, were of an obviously serious nature. There is also the added element that Mr
Subritzky appears to target victims of Asian
descent, and gains access to his victims
by obtaining their trust.
[36] Equally disturbing is the fact that Mr Subritzky steadfastly
denies any
wrongdoing. Refusal to accept responsibility for his past offending does little to
enhance the prognosis for the future.
It is quite obvious that Mr Subritzky is not
prepared at this stage to seek help for his sexual offending, because he is not
prepared
to accept responsibility for offending that has occurred in the past.
[37] Mr Subritzky's past offending, coupled with the
matters referred to in Mr
Wiehahn's report satisfy me that there is a real risk that, unless an extended
supervis io n order was
made, Mr Subritzky is likely to commit further offences
against children and young women, particularly those of Asian descent in
particular.
[38] For these reasons, I concluded that it was appropriate for an extended
supervis io n order to be made.
The
term of the order
[39] Section 107I(4) of the Act provides that every extended supervision order
must state the term of the
order, and that the term of the order may not exceed ten
years.
[40] Mr Wiehahn says that research indicates that individuals
of Mr Subritzky's
assessed risk level remain as likely to re-offend over an extended period as they are
within a shorter period.
For this reason, he recommends that, if an order is made, it
should be for the maximum term of ten years.
[41] In the present
case, I am influenced by the fact that, as Mr Wiehahn's report
reveals, individuals with similar scores to that of Mr Subritzky under
the Static-AS
actuarial instrument have been found to have a high risk of sexual re-offending
within five years release, and that
this risk increases over ten years. The fact that
Mr Subritzky has committed offences over a lengthy period also suggests, in
my
view, that he will remain at risk of future offending for some considerable period.
[42] Given that the purpose of the
legislation is to ensure that children and young
persons are protected so far as is possible, I am of the view that a cautious approach
is required. For that reason, I am satisfied
that the term of the order should be the
maximum available, namely ten years.
[43] However, I draw the attention of the Chief
Executive to the fact that the
extended supervision order will enure until Mr Subritzky is 73 years of age. The
evidence suggests
that his health is not presently good and that it may in fact be
failing.
[44] I would hope that, provided Mr Subritzky does
not breach the terms of the
order or reoffend in any way, the Chief Executive could give consideration to
making an application for
the order to be discharged once Mr Subritzky reaches 70
years of age. Giving such decision would of course need to take into account
the
material then available relating to the likelihood that he will reoffend again in the
future.
_______________________________
Lang J
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