Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS V C HC WN CRI 2006-485-51 [2006] NZHC 790 (10 July 2006)

      ORDER SUPPRESSING PUBLICATION OF RESPONDENT'S NAME


IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                
                                                     CRI 2006-485-51



               BETWEEN                     CHIEF EXECUTIVE
OF THE
                                           DEPARTMENT OF CORRECTIONS
                                           Applicant

               AND                         C
                                           Respondent


Hearing:       6 July 2006

Appearances: N Chisnall for the Applicant
             S Baigent for the Respondent

Judgment:      10 July 2006 at 4PM


     
                       JUDGMENT OF MILLER J



[1]     The Chief Executive of the Department of Corrections moves for an extended
supervis io n order under s107E of the Parole Act 2002.


[2]     Mr C was sentenced on 2 April 1993 to eight years three months
imprisonment on one count of rape of a girl under 12, two counts of unlawful sexual
connection with a boy under 12, two counts of
indecent assault on a girl under 12,
one count of indecent assault on a boy under 12, and one count of an indecent act on
a boy under
12.


[3]     On 10 May 1995, Mr C was further sentenced to six years imprisonment,
cumulat ive on his previous sentence, on three
counts of rape, two counts of unlawful
sexual connection, and four counts of indecent assault, all relating to a girl under 12.




CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS V C HC WN CRI 2006-485-51 10 July
2006

[4]     Mr C's total sentence was 14
years three months imprisonment. Mr C is still
in custody; his final release date is 19 July 2006. He is now aged 55.


[5]     Mr
C was sentenced by Hammond J on both occasions. On the second
occasion, the Judge noted that the offences involved Mr C's own daughters
(whose
names and identifying details continue to be suppressed along with those of the other
vict ims).   The previous convictions
related to sexual abuse of children of a
neighbouring family. The charges in respect of which Mr C had been convicted
were representative
ones. The children had been sexually abused from the time
when they were as young as they could remember until the time they were
taken
fro m the family home and placed in care. The probation report showed that Mr C is
an angry, defensive person who trusts no
one. He was in denial, and not at all
receptive to discussing the issues.    He had isolated himself within the prison
environment.
No progress could be made in treatment because of his belief that he
was not guilty and his decision to isolate himself from all
but his professional legal
advisors.


[6]     It is common ground that C is an eligible offender under s107C(1) in that he
has been
sentenced to imprisonment for a relevant offence and had not ceased to be
subject to that sentence when the application was brought.


[7]     The purpose of an extended supervision order is to protect members of the
communit y from those who, following a determinate
sentence, pose a real and
ongoing risk of committing sexual offences against children or young persons:
s107I. The Court may not
make an order unless satisfied, having considered the
matters addressed in a health assessor's report, that the offender is likely
to commit
any of the relevant offences referred to in s107B(2) on ceasing to be an eligible
offender.


[8]     The leading case
is Chief Executive of the Department of Corrections v
McIntosh HC CHCH CRI 2004-409-000162, a Full Court decision. Following R v
Leitch  [1998] 1 NZLR 420, a preventive detention case, the Court held that the need
to be "satisfied" calls for the exercise of judgment by the Court. It
means simply
"makes up its mind" and is indicative of a state where the Court on the evidence

comes to a judicial decision. The
Court also rejected a submission that extended
supervis io n orders should be made for the minimum period required to facilitate
treatment. Rather, orders must be made for the minimum period required to achieve
protection of the community.


[9]    As required
by s107F(2), a health assessment has been carried out. Nic
Lascelles, a registered clinical psychologist with the Department of Corrections,
carried out the assessment, addressing the matters prescribed in s107F(2). His report
is dated 20 March 2006. Mr C refused to co-operate
with him, and Mr Lascelles'
report had to be prepared on the basis of file information and consultation with
prison staff. The law
allows me to take non-co-operation into account but I must
also consider any explanation for it. Mr C was told of the proposed report
by letter
of 13 January but refused to co-operate on the ground that "protocol" for an
interview had not been followed. There is
no evidence of any such protocol.


[10]   Mr Lascelles recorded that C has a large number of previous convictions for
property and
dishonesty offences, beginning in 1976 at the age of 20 years. He
continued to offend regularly until the index convictions in 1993
and 1995, but had
no recorded history of sexual or violent offending before these convictions. His
history has been the subject of
varying accounts given by Mr C to psychologists and
other professionals. A previous report by forensic psychiatrists engaged on Mr
C's
behalf recorded many contradictions in his account and vagueness and uncertainty in
the chronology recorded in a recent account
given by Mr C in a psychological
service report of 13 August 2004. In it he said he was one of seven children who had
a reasonably
hard upbringing, in a family evidently characterised by little affection.
He has no contact with the family members. Following a
motor vehicle accident in
1987 he has experienced high emotion including explosive anger, sudden tears and
frustration, although
these systems have reduced somewhat over the years.          He
reported using alcohol and cannabis excessively during his offending.
He had been
married twice.


[11]   Mr Lascelles also recorded that the same psychological service report gave an
account of Mr C's
explanation for the offending. He denied guilt but admitted
inappropriate sexual touching with his eldest daughter, saying that he
turned towards

her for support when he and his wife were very stressed. In a subsequent interview,
Mr C recanted the limited admissions
made in the August 2004 report.


[12]      Mr C has expressed considerable hostility towards his eldest daughter,
threatening to
get back at her. He has also been convicted of a charge of indecency
during his imprisonment, having urinated in the presence of
staff, and has several
minor misdemeanours to his name. In October 2001, over 50 pages of a "story" in
his handwriting were found
in his cell when it was being packed for a transfer. The
story contained many explicit descriptions of sexual acts, including themes
of
bestialit y, incest, and sex with girls under 16. It also involved grooming children for
sex using pornography.


[13]      Mr
C's prison file also contains numerous documents detailing allegations
made against staff. Such allegations are characterised by
a tendency to escalate
issues immediately to the highest authority available and use of threats of legal
action.


[14]      Mr C
has received no treatment to address his sexual offending needs. He
has been referred twice, expressing a wish to do anything that
would give him better
understanding and knowledge concerning aspects of sexual behaviour, but has not
been found eligible for the
Te Piriti Special Treatment Programme because of his
denial that he had committed any sexual offences. He has been the subject of an
order that he not be released before his statutory
release date.


[15]      The Static-AS actuarial instrument was used to assess the risk of sexual
recidivism. Mr C was assessed
as medium-low by that measure. However, Mr
Lascelles concluded that the Static-AS significantly underestimates Mr C's risk. It
overlooks
further static factors, being the duration and extent of previous sexual
offending, further sexual offending during imprisonment,
and the exhibitionist nature
of that offending. It also overlooks dynamic factors. Based on the present Static-99
test, which does
consider other factors, the risk is high. The SONAR test produces
the same result. He also scores highly on the Psychopathy Checklist:
Revised -
Second Edition and scores highly on deviant sexual arousal. Mr Lascelles concludes
that Mr C is at high risk of reoffending.

[16]   Mr Lascelles concludes that Mr C is most at risk of sexual offending against
children ranging from 5 to 15 years who are
known to him and to whom he has easy
access. He demonstrates a consistent lack of ability to control sexual impulses, and
there is
no evidence of improvement. His extensive history of recorded sexual
offending began in 1989 and continued until 1992, and a predilection
for such
offending is shown by his behaviour in prison. He demonstrates no willingness to
take responsibility for his offending,
and his assessed risk of further sexual re-
offending is high.


[17]   Further, Mr Lascelles notes that Mr C has not provided information
regarding
his plans for accommodation, saying that those plans are not the concern of
Corrections. He has identified four people
who will be providing support, but has
not given permission for these people to be contacted. Mr Lascelles considers that
this is
of concern given that support networks play a key role in supporting an
offender in reintegration into the community. He considers
that there is a risk that
Mr C will attempt to make contact with one of the victims.


[18]   Mr Lascelles was examined and cross-examined
on his report. He explained
that he met Mr C on 6 June 2006 in connection with the application for an order that
he not be released
before his sentence release date. They discussed Mr Lascelles'
report in this proceeding and Mr C was invited to review the report
and identify
anyt hing that he disputed. He agreed to do so, on the terms that nothing he said
would be provided to the Parole Board,
but that was unacceptable to Mr Lascelles.


[19]   Mr Lascelles elaborated on the charge of indecency and the "story". The
letter
was written as a novel and dealt with sexual abuse of school age girls, in one
instance with the aid of an adult female who had been
abused herself.


[20]   Mr C appeared in Court wearing dark glasses and carrying a cane. He claims
to be blind. Mr Lascelles observes
that there are discrepancies between Mr C's self-
reported visual impairment and observations of his behaviour. Prison staff, medical
staff, social workers, and an optometrist have all expressed doubt about this. The
observat ions of the optometrist were not consistent
with blindness. In any event,
blindness would not reduce his risk and could even increase it. He reported a high

degree of visual
impairment before the offending, and his pattern is one of exploiting
relat ionships he has formed.


[21]     With respect to age,
Mr Lascelles said there is some evidence that recidivism
reduces somewhat with age in those over 60. But the risk may persist into
older age
among those at high risk. Mr C's 2001 writings evidence an ongoing sexual interest
in children. Sexual offending is a "lifetime
persistent problem" unless there are
substant ial alterations in risk factors; Mr C would have to undertake extensive
treatment to
modify those factors.


[22]     In cross-examination, Mr Lascelles agreed that Mr C began to offend a year
after he suffered head
injuries in a car accident in 1987. He has symptoms of
moderate to severe head injuries. These symptoms could cause a degree of cognitive
impairment,
accounting for non-cooperation with prison staff and his insistence on
fo llo wing "protocol". Ms Baigent put it to Mr Lascelles
that the injuries and Mr C's
denials make it impossible to assess Mr C's risk to the community; he disagreed.
He considered rather
that the head injury contributed to an intimacy deficit and
iso lat ion, both of which could add to the risk.


[23]     Mr Lascelles
accepted that the most recent information available to him was
prison records and consultation with prison staff. Some of the reports
Mr Lascelles
relied on were written by people who were unable to interview Mr C. There is
evidence that prison staff have described
him as compliant and well-mannered and
that there have been no recent indications of misconduct, but Mr Lascelles regards
that as
an exception in a long pattern of misbehaviour. His last actual misconduct
was in December 2004. The reference to Mr Lascelles report
to hostility towards Mr
C's victim is said to be based on a number of separate observations on his file.


[24]     Ms Baigent also
suggested that the previous reports varied in the tests that
were used, and that Mr Lascelles selected his tests to present a more
bleak picture.
He disagreed, pointing out that he used the Static-AS test and that previous reports
provided similar risk assessments.
I observe that the tests used appear to be standard
tests.

[25]      With respect to the urinating incident, Ms Baigent suggested
that Mr C was
in his own cell at the time, and was simply going to the toilet after getting out of bed.
Mr Lascelles responded that
Mr C exposed himself in very close proximity to an
officer, who saw it as calculated to offend. He was convicted of a breach of prison
discipline but received only a minor penalty.


[26]      Turning to the "story", Mr Lascelles did not accept that only one 13-year-old
girl was involved. No disciplinary proceedings were brought. He confirmed that it
invo lved grooming children by leaving pornography
where they could see it.


[27]      Lastly, Ms Baigent referred to the optometrist's report.       There was no
evidence of problems
with the optic nerve but the optometrist thought that damage to
the visual cortex could account for impairment.          An further
assessment by a
consultant ophthalmologist in 2001 suggests his sight in both eyes is indeed very
poor.


[28]      Mr C himself
did not give evidence, and Ms Baigent's instructions evidently
did not extend to acceptance that he committed the offences for which
he was
sentenced, let alone a commitment to treatment. His reasons for refusing to co-
operate were not adequately explained. Nor
did she have instructions to disclose his
intended living arrangements, although Mr Lascelles was criticised for his failure to
investigate
the possibility that Mr C would need professional assistance to cope with
daily life. She did point out that he will be subject to
special release conditions until
January 2007, and submitted that he is engaging with a social worker who will assist
him with reintegration.


[29]      Ms Baigent reserved the point that s107C(2) does not on its true construction
permit retrospective application; I understand
that point is before the appellate
Courts.     She then submitted that Corrections has not discharged the burden of
showing Mr C
is likely to commit further qualifying offences on release. It is true
that he does not accept guilt and has not accepted any need
for counselling, nor has
he revealed his proposed living arraignments. But he is dealing with a social worker
and the Parole Board.
He may need close and regular contact with professionals
because of his blindness, and they will provide a degree of supervision.
During

argument Mr C gave instructions that he will undertake counselling (although that
would have to be by his own arrangement).
          Taken overall, she submitted the
evidence does not establish a likelihood of offending.


[30]   I do not accept these submissions.
        The evidence about likelihood of
offending raises questions of propensity and opportunity, both of which are logically
relevant
to the statutory test. Dealing with the first of these, Mr Lascelles' evidence
(which I accept) shows that Mr C is a paedophile who
has demonstrated a strong and
predatory sexual interest in children. There is nothing to suggest he has managed to
control those
tendencies while in prison; on the contrary, there is some evidence of
continuing interest in the sexual exploitation of children.
In that regard, I rely on the
"story" rather than the urinating incident.


[31]   The only real question is whether Mr C will enjoy
the opportunity to offend.
His offending to date has been against children he knew well, suggesting that he
grooms children for sex.
There is no evidence that he will be able to exploit family
connections for that purpose; his family are estranged from him. He also
says he is
blind, having finally lost his sight during his prison sentence, and I do not think that
Corrections has discharged the
burden of showing that he is not.


[32]   The answer to the question about opportunity depends on where Mr C ends
up living. If
he chose to live in close proximity to children, the opportunity to
explo it them would arise. I do not think his blindness affects
the risk one way or the
other. The release conditions will operate for only a few months. I am satisfied that
he will be able to
put himself in a position of opportunity. Control over his choice of
residence is necessary to manage that risk.


[33]   There will
be an extended supervision order, to take effect on Mr C's
statutory release date. The next question is its term. The legislation
permits a
maximum of 10 years. The term must be the minimum period required for the safety
of the community, in light of the level
of risk, the seriousness of the harm that might
be caused, and the likely duration of the risk.

[34]    The level of risk is moderate
because Mr C's opportunity to offend may be
somewhat limited by the need to locate and groom children, but the harm that he
would
cause is very high, because his history indicates it would involve rape and
gross abuse of trust. The duration of the risk must be
regarded as indefinite, because
in the absence of acceptance and treatment his paedophilia must be regarded as a
feature of Mr C
that will always be with him. There is no evidence that age will
mit igate the risk significantly. In this case, a 10 year term is
justified. I observe that
Mr C instructed Ms Baigent during the hearing that he is willing to undertake
counselling outside the prison
system. I encourage him to do so, and note that he has
the right to apply for cancellation of the order.


[35]    The application
is granted. The term of the order will be 10 years. Because
Mr C's victims included his own children and their names are suppressed,
there will
be an order suppressing publication of his name.



                                                               F Miller
J

Solicitors:
Crown Law Office, Wellington for Applicant
S Baigent, Wellington for Respondent