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High Court of New Zealand Decisions |
ORDER PROHIBITING PUBLICATION OF NAME OF RESPONDENT OR
IDENTIFYING PARTICULARS
IN THE HIGH COURT OF NEW ZEALAND
BLENHEIM REGISTRY
CRI-2005-406-006
BETWEEN THE CHIEF EXECUTIVE OF THE
DEPARTMENT OF CORRECTIONS
Applicant
AND W
Respondent
Hearing: 21 November 2005
Appearances: C Stevenson for the applicant
G E
Sawyer for the respondent
Judgment: 29 November 2005 at 11.30 a.m.
JUDGMENT OF MACKENZIE J
[1] This is an application for an extended supervision order under s 107F of the
Parole Act 2002. The respondent is an eligible
offender, as that term is defined in
s 107C of the Act, and his status as such is not in dispute.
[2] The purpose of an extended
supervision order, and the matters upon which
the Court must be satisfied before making such an order, are set out in s 107I in these
terms:
(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
THE CHIEF EXECUTIVE OF
THE DEPARTMENT OF CORRECTIONS V W HC BLE CRI-2005-406-006
29 November 2005
of the relevant offences referred to in section
107B(2) on ceasing to be an
eligible offender.
[3] The term of any order is governed by subsections (4) and (5), which
provide
as follows:
(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.
[4] The time within
which application may be made is set out in s 107F(1).
There is no issue here that application has been made within the prescribed
time.
Section 107F(2) provides as follows:
(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.
[5]
As to the hearing, s 107H(2) provides as follows:
(2) At any hearing, the court may receive and take into account
any
evidence or information that it thinks fit for the purpose of determining the
application or appeal, whether or
not it would be admissible in a court of
law.
[6] The assessment which the Court must make is whether it is satisfied
that W is
likely to commit sexual offences. The test to be applied is discussed in the first
decision under this new legislation, Chief Executive of Department of Corrections v
McIntosh
(High Court, Christchurch, CRI 2004-409-000162, 8 December 2004, John
Hansen and Panckhurst JJ). They held that the term "satisfied"
in this context has
the same meaning as was placed on that word in relation to the imposition of the
sentence of preventive detention,
where the Court of Appeal noted in R v Leitch
[1998] 1 NZLR 420 at p 428 that what is required is the exercise of judgment by the
Court, and that it is inapt to import notions of the burden of
proof to any particular
standard. While I agree that, so far as the meaning of the word "satisfied" is
concerned, the adoption of
the approach in R v Leitch is appropriate, that does not
completely answer the question of the appropriate standard in the context
of s
107I(2). The Court must be "satisfied" that the offender is "likely" to commit a
relevant offence. The degree of probability
imported by the word "likely" must be
determined. In R v Harney [1987] 2 NZLR 576, the Court of Appeal, in dealing with
the word "likely" in s 167(b) of the Crimes Act 1961, treated the word, at p 581, as
importing
"a real or substantial risk". That formulation of the test was adopted, in a
quite different context, in Port Nelson Ltd v Commerce
Commission [1996] 3 NZLR
554, at 562-563:
We agree with the submission advanced by Mr White that bearing in mind
the purpose of the provision the
appropriate level is that above mere
possibility but not so high as more likely than not and is best expressed as a
real and substantial risk that the stated consequence will happen. That is the
construction adopted in a different context
in Colonial Mutual Life
Assurance Society Ltd v Wilson Neill Ltd [1994] 2 NZLR 152, 161 and one
well-known in the criminal law: R v Harney [1987] 2 NZLR 576, 581
I consider that the task for the Court under s 107I is to make up its mind, that is to
say, to come to a judicial decision
on the evidence, whether or not there is a real or
substantial risk of further relevant offending.
[7] W was released on parole
on 19 November 2003 from a sentence of
imprisonment imposed on 3 May 1999. He had pleaded guilty to four charges of
indecent assault
on a boy under 12 and three charges of unlawful sexual connection
with a male under 12. The circumstances of that offending were
described in the
sentencing notes by the sentencing Judge in these terms:
Over the Christmas holidays when your two sons
were in your custody you
indecently assaulted the elder boy. You masturbated him and performed oral
sex on him.
These offences were repeated the next day and three days later
when you were accompanying the boys on holiday. In one incident
when
they came across the Cook Strait on the Interisland Ferry. In the course of
that offending you attempted to
persuade your other son to participate but he
declined.
[8] Consideration was given to the imposition of a term of preventive
detention.
The sentencing Judge regarded a finite sentence as the preferred course. He noted
that W would have a further chance of
treatment within a shorter period of time than
would be the case if he received preventive detention, and thought that in this case
that was worthy of further effort, because of his earlier favourable response to the
Kia Marama programme. He observed,
however, that W escaped preventive
detention "by a narrow margin".
[9] The reference to the Kia Marama programme was to attendance
in that
programme on an earlier sentence, imposed in 1990, for a number of charges of
offending against a step-son and a girl who
was in W's care. The sentencing Judge
in 1999 noted that he was the sentencing Judge in that case, although he had no
recollection
of the details. He said:
Clearly I did not think it was particularly serious and confined your sentence
to one of
two years and 18 months respectively. I directed that you attend
Rolleston Prison for the Kia Marama course and you did so.
W also completed the Kia Marama programme in his last sentence.
[10] I have had the benefit of a report dated 27 April 2005
from the health
assessor, Ms Inkster, together with an updating report dated 11 November 2005.
The assessor gave evidence, and was
cross-examined, before me. In addition, the
respondent, W, and Ms L, swore affidavits and were cross-examined on those
affidavits.
I also heard evidence from Ms Cunningham, Area Manager of the
Community Probation Service.
[11] In her first report, Ms Inkster
described the previous offending (which, so far
as relevant, consists of that which I have briefly described, and an assault against
a
child, in 1988, for which he was ordered to come up for sentence if called upon).
Ms Inkster also described the treatment which
W has received, both while in prison
and since his release. She set out a current assessment of him. In that assessment,
Ms Inkster
noted a number of changes in his lifestyle, some of which could be seen
as contributing a more balanced and pro-social lifestyle,
while others continued to be
problematic with respect to recidivism risk. Among these were:
(a) That he was now in regular
employment, which she noted as
contributing to a balanced lifestyle;
(b) That he was living in a fairly isolated
living environment that would
contribute to social isolation;
(c) That he had attended church but had recently
severed his relationship
with the church congregation, meaning he had less support from people who
knew about his risk
for sexual offending;
(d) That he reported a changed attitude to stress and that he was now
much less anxious
and subject to stress;
(e) He denied any interest in children;
(f) He has stated emphatically he would never again enter into a
relationship, which,
in Ms Inkster's opinion, "constitutes an avoidance of the
challenges that would arise in developing healthy adult relationships".
[12] Ms Inkster also made an analysis of his potential to re-offend. W was
assessed on the Static-AS test, which contains seven
items that assess static factors
relating to risk, and is scored from the offender's official criminal record. W was
assessed as
being at high risk of re-offending using that test. She noted:
His score was influenced by his past convictions for sexual
offending, as
well as history of violent offending. However, this probability of serious
sexual recidivism is based
solely on static risk predictors.
[13] The other assessment instrument used was the Sex Offender Need
Assessment Rating (SONAR),
which she described as "developed to assess dynamic
predictors of sexual recidivism to add value to the assessment of static risk
measures". She noted that that test "includes five relatively stable factors (intimacy
deficits, negative social influences, attitudes
tolerant of sex offending, sexual self-
regulation, general self-regulation) and four acute factors (substance abuse, negative
mood, anger, and victim access)". W was found to have a score on that instrument
that indicated a low risk of recidivism.
[14]
Ms Inkster summarised all factors associated with his risk for recidivism.
She further noted that assessment indicated that W "is
currently managing his
recidivism risk with assistance from professional services and his support people",
and, in summary, said
that "assessment of [his] risk of further sexual re-offending
indicates that he has a high risk of committing a further relevant
sexual offence
whilst in the community" and that "Although his assessment indicates he is currently
managing this risk, it should
be noted that this management is occurring while on
parole conditions and .... that individuals of [his] assessed risk level, assessed
sexual
preference and social functioning, remain as likely to re-offend over an extended
period as they are within a shorter period".
She accordingly recommended an
application for an extended supervision order, and that an order, if applied, should be
for the maximum
length available under the legislation, namely 10 years.
[15] In their affidavits, W and Ms L confirm that they have entered
into the early
stages of a relationship, which has developed to the stage where it is an intimate
relationship and W spends three
or four nights over at her place each week. Each
expresses the view that they are committed to each other. Ms L confirms that W had
disclosed his past offending and was reasonably "up front" about his offending. She
expresses confidence that "the reprogramming
he has gone through in prison has
been successful", and that he "has good boundaries considering his past behaviours".
She expresses
some reservations as to the underlying assumptions in Ms Inkster's
report. In particular, she notes the comments about intimacy deficits
being a strong
predictor of sexual recidivism and says that she finds W to be kind and open with her
and that their relationship
is an intimate one, both emotionally and physically. She
says that she has had to come to terms with his past but has made a conscious
decision to move past that.
[16] Ms Inkster filed a short additional report dated 11 November 2005, in which
she again refers
to the two risk assessment tools which have been utilised, the
Static-AS and the SONAR. She noted that his assessment on the Static-AS
would
remain high and says that:
Despite the development of a stable intimate relationship with an adult
female his
risk prediction on the SONAR remains low and therefore
unchanged.
She concludes that the "risk prediction remains unaltered
in spite of the change in his
personal circumstances and he therefore continues to have a lifetime risk of sexually
re-offending against male and female children".
[17]
The task for this Court is to determine whether W is likely to commit future
sexual offences against children or young persons.
The risk, assessed by the Static-
AS assessment, is high. Ms Inkster said that the statistical probability is that 50% of
offenders
assessed as at high risk under that test will re-offend within 10 years. The
assessment is essentially a static one, and, as cross-examination
revealed, essentially
unable to be changed, because the assessment is based on past convictions and
history. However, when dynamic
factors, that is, those factors which are capable of
change, are assessed, as they are in the SONAR test, the risk of re-offending
is
assessed as low.
[18] It is clear that Ms Inkster's recommendation is based predominantly on his
past behaviour, and on the
static test. In cross-examination, she said that only in
extreme exceptional circumstances should a dynamic prediction or clinical
assessment be used to alter the prediction based on static variables. She agreed in
cross-examination that, according to the research,
W could never satisfy her that he
did not remain high risk.
[19] I do not infer a legislative mandate to have regard only to
static factors. The
factors which the Court is directed by the legislation to consider do not suggest that
precedence is required
to be given to a static assessment, based on historical factors
which are incapable of change. The fact that the issue is to be determined
at the end
of the sentence suggests that the assessment will reflect changes in risk factors since
the time of the offending. Many
of the matters which the health assessor is required
to address under s 107F(2), particularly paragraphs (b) and (d), must necessarily
be
based on the circumstances as they exist at the time of assessment. One of the
matters which the Court is required to address
is the term of the order, in the light of,
inter alia, the likely duration of the risk. That clearly contemplates that the risk may
change over time. For these reasons, in the absence of any evidence directed
specifically to the reasons why that would be
appropriate, I do not think that I should
give predominance to the static test and accord little weight to the SONAR test. The
evidence
before me does not suggest that this is appropriate. There is no evidence
that the predictive ability of the static test is superior.
Ms Inkster's evidence was that
the Static-AS is based on an actuarial tool which has been found to show moderate
predictive accuracy
for sexual recidivism, and that the SONAR scale has shown a
moderate ability to differentiate between sexual recidivists and non-recidivists.
The
Court must take into account, in my view, both the high risk assessment achieved by
the historical and static measurement, and
the low risk assessment obtained from the
dynamic assessment.
[20] One difficulty with taking into account dynamic factors, and
the low risk
rating which in this case results from that assessment, is that, because they are
dynamic factors, they may change in
the future. Thus, while the high rating under
the Static-AS test will not change in the future, the low assessment under the
SONAR
assessment might change if the relevant dynamic factors were to change.
That suggests that the Court must examine carefully the factors
which are relevant to
the dynamic assessment, to assess the likelihood of an adverse change. Ms Inkster's
evidence was that the SONAR
includes five relatively stable factors and four acute
factors. Among the stable factors are intimacy deficit and negative social
influences.
In this case, the low assessment was made at a time when W was subject to a number
of risk factors which are no longer
present. In particular, the assessment was made
when he was living in an isolated environment, with no intimate relationship. Both
of those factors have since changed for the better. Were his low risk assessment
substantially dependent upon his current relationship, then the possibility
that the
relationship might not continue would be a matter of significant concern. However,
as the SONAR risk rating of low pre-dated
the formation of that relationship, and
there is no evidence to suggest that it would not survive the termination of that
relationship,
the SONAR risk rating of low must be viewed as a reasonably robust
one.
[21] Among the acute factors included in the SONAR to
which Ms Inkster
referred is victim access. This requires a close consideration of the class of potential
victims. That is a matter
which the health assessor's report is required to cover,
under s 107F(2)(a). In this case, Ms Inkster identifies the class simply
as "male and
female children". The report does not discuss who, within that broad category, are
likely victims. In W's case, both
the 1990 and the 1999 offending was against
children who were in his care. There is no evidence of a risk to strangers.
Therefore,
the extent to which it is likely that W may have access to potential victims
who are in his care, or in close proximity to him, needs
to be considered. W's sons
are now aged about 17 and 16. Ms L has no children, and the evidence was that no
children of their relationship
are contemplated. W's present employer is aware of his
situation. I do not consider that any particular at-risk group of children
has been
identified.
[22] In deciding whether to make an extended supervision order, considerations
other than the likely risk
are also relevant. That is so because, even if the Court is
satisfied that the offender is likely to commit a relevant offence, there
remains a
discretion whether to make an order. One relevant consideration must be the
rehabilitation of the offender. Rehabilitation
is relevant, both as an end in itself, so
far as the offender is concerned, and as a means to reducing the risk of further
offending.
In this case, the evidence suggests that W is managing his risk, and that
he is making progress in his rehabilitative efforts.
Ms Inkster in her evidence
acknowledged that he is making progress in a number of areas. I am not satisfied,
from the evidence
of Ms Cunningham and Ms Inkster, that his rehabilitative efforts
would be assisted by facilities being made available to him if an
order were made.
[23] On the evidence, I consider that the risk that W will commit a relevant
offence remains, and can never
be eliminated. However, taking into account all the
evidence, and placing weight on both assessment measures, I am not satisfied
that
the level of risk is sufficient to meet the statutory test that he is likely to commit a
relevant offence. Alternatively, if
that statutory test is met, I consider that the level
of risk is such that, weighing all relevant factors along with that risk, the
making of
an order is not justified.
[24] Accordingly, the application for an order is declined.
"A D MacKenzie J"
Solicitors
R G Marshall, Crown Solicitor, Nelson, for the applicant
Gascoigne Wicks,
Blenheim, for the respondent
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URL: http://www.nzlii.org/nz/cases/NZHC/2005/304.html