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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2005-404-000179
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
v
LANCE RICHARD HARBOUR
Respondent
Hearing: 28 June
2006
Appearances: M A Woolford for Applicant
P L Borich for Respondent
Judgment: 17 July 2006 at 11:41 am
RESERVED JUDGMENT OF COURTNEY J
ON APPLICATION FOR EXTENDED SUPERVISION ORDER
Solicitors: Meredith
Connell, P O Box 2213, Auckland
Fax: (09) 336-7629
Rice Craig, P O Box 72-440, Papakura
Fax: (09) 299-6107
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS V HARBOUR HC AK CRI-2005-404-
000179 17 July 2006
Introduction
[1] The Chief Executive of the Department of Corrections (CEDC) applies under
s 107F Parole Act 2002 for an extended supervision
order against the respondent, Mr
Harbour, on the ground that he is likely to commit an offence referred to in
s 107B(2) on ceasing
to be an eligible offender. Mr Harbour opposes the
applicat ion.
[2] In June 1994 Mr Harbour was sentenced to
twelve years imprisonment on a
charge of sexual violation by unlawful sexual connection, five years imprisonment
on a charge of burglary
and one charge of kidnapping and four years imprisonment
on one charge of injuring with intent to injure. The charges arose from
an incident in
June 1993 when he broke into a house in Flaxmere, took a three-year-old boy from
his bed, battered him about the head,
sodomised him and abandoned him. He was
released from prison on 26 June 2001 and was subject to release conditions until
25 June
2005. This application was made on 18 May 2005.
Jurisdiction
[3] The Parole (Extended Supervision) Amendment Act 2004 came
into force on
7 July 2004. It provides for extended supervision orders, under which an offender
can be placed under further supervision
from the conclusion of his or her existing
term of imprisonment or release conditions. The purpose of such an order is stated
in
s 107I(1) as being:
...To protect members of the community from those who, following receipt
of a determinative
sentence, pose a real and ongoing risk of committing
sexual offences against children or young persons.
[4] And extended
supervision order may only be made in respect of an eligible
offender as that is defined in s 107C namely:
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.
[5] It was not contested that Mr Harbour's conviction for sexual violation of the
three-year-old was a relevant offence
for the purposes of s 107C (as that term is
defined in s 107B). As is clear from s 107C(2) the fact that Mr Harbour was
convicted prior to the introduction of the Parole (Extended Supervision)
Amendment
Act 2004 does not prevent him from being an eligible offender for the purposes of
the Act.
[6] The jurisdiction for
making an extended supervision order is conferred by
s 107I(2):
A sentencing court may make an extended supervision order
if, following
the hearing of an application made under s 107F, the court is satisfied,
having considered the matters
addressed in the health assessor's report as set
out in s 107F(2) 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.
[7] The matters identified in s 107F(2) as having
to be addressed in the health
assessor's report are:
a) The nature of any likely future sexual offending by the offender,
including age and sex of likely victims;
b) The offender's ability to control his or her sexual impulses;
c) The offenders predilection and proclivity for sexual offending;
d) The offender's acceptance of responsibility
and remorse for past
offending; and
e) Any other relevant factors.
[8] I note, however, that whilst
these matters are to be considered, proof of them
to any particular standard is not required by s 107I(2). The Court needs only to
be
satisfied that the offender is likely to commit one of the relevant offences in the
future. In Chief Executive of Department of
Corrections v MacIntosh (CRI-2004-
409-000162, John Hansen and Pankhurst JJ, 8 December 2004) the Court applied the
statement by
the Court of Appeal in R v Leitch [1998] 1 NZLR 420 at 428 that:
The need to be quite satisfied calls for the exercise of judgment by the
sentencing Court. It is inapt
to import notions of the burden of proof and of
setting a particular standard, e.g. beyond reasonable doubt. As this Court
said in R v White (David) [1988] 1 NZLR 264 at 268 with reference to
s 75(2), the phrase "is satisfied" means simply "makes up its mind" and is
indicative of a
state where the Court on the evidence comes to a judicial
decision. There is no need or justification for adding any advervial
qualification.
Health Assessor's Report
[9] Ms Cristina Fon, a registered clinical psychologist employed as a principal
psycho logist for Psychological Service, Department of Corrections at the Northland
office, provided a report dated 26 April 2005
for the purposes of this application.
Mr Harbour declined to be interviewed by Ms Fon. However, Ms Fon had access to
all relevant
documentary information about Mr Harbour and his previous offending
and in addition was able to obtain information (with Mr Harbour's
consent) from his
wife and employer.
[10] Ms Fon stated that she had used a multi-method assessment methodology
incorporating
the use of actuarial instruments and clinically derived information
empirically linked to sexual recidivism. On the basis of the
available information
and these assessments she concluded that Mr Harbour had a high base line risk of
committ ing further relevant
sexual offences.
[11] Ms Fon reviewed Mr Harbour's personal and criminal history for the
purposes of making her assessment.
In terms of his personal background she noted
that he grew up in an emotionally and physically abusive environment, had limited
emplo
yment history, had become addicted to solvents when working in the paint
industry and also had a significant alcohol problem. He
has been married for over 20
years to the same woman. That relationship has had its difficulties, particularly in
the earlier years,
but now appears to be a stable and supportive feature of Mr
Harbour's life.
[12] In relation to his criminal history, Mr Harbour
has some 18 convictions
dating from about 1982, including his index offence, which I have described above.
Relevant ly, the convictions
include five for violence and three for sexual offending.
These are the offences that Ms Fon has particularly focused on and I briefly
describe
them:
· October 1982, assault on a woman while she was walking.
· December 1983, indecent
exposure.
· January 1984, burglary of a house and assault on the female occupant.
The sentencing
Judge in the index offence referred to this incident as
having overtones of sexual invitation.
·
July 1988, burglary during which he entered the bedroom of an
elderly woman, fiddling with his trousers and
fled when she sounded
an alarm.
· July 1988, burglary and indecent assault of a female over the
age of
16, when he entered a woman's house and demanded that she show
him her genitals. At the
time of this and the previous offence Mr
Harbour was in possession of several pairs of womens' underwear.
· 16 June 1993, unlawful sexual connection (index offence).
[13] Also of some relevance in Ms Fon's view was the
fact that whilst in prison
Mr Harbour faced a misconduct charge for having possession of child pornography
found on a floppy disk
in his cell.
[14] Ms Fon gave evidence as to the actuarial instruments used to assess the risk
of Mr Harbour re-offending.
She used the Static-AS, an actuarial instrument
developed with a New Zealand offender population which estimates the probability
of sexual and violent recidivism among adult males already convicted of at least one
sexual offence against a child or non-consenting
adult. This instrument is based on
the Static-99 which was developed in North America and the United Kingdom and
found to show moderate
predictive accuracy for both sexual and violent recidivism.
[15] Ms Fon was cross-examined at some length about the effect and
reliability of
the Static-AS in respect of two particular aspects. The first was the concept that a
high risk assessment under the Static-AS would produce the same risk
assessment on
the date of release from prison as it would after five years offence-free living in the
communit y. Mr Borich taxed
Ms Fon at some length over this concept, suggesting
to her that as more time passed without an offender re-offending the lower the
risk
must surely be. Ms Fon would not be budged on this point. Her evidence was clear
and determined that under the Static-AS assessment
the predicted risk was a
cumulat ive one. She said in cross-examination:
It is not as easy as saying does Mr Harbour present
the same risk today as
five years ago. One can have a statistical definition of risk. One can have a
sema ntic definition
of risk and there is which I think counsel is referring to, a
trend for some offenders to have a decreasing level of risk
the longer they
are out. As a whole however individuals who fit within the category within
which Mr Harbour fits have
a constant rate of recidivism relatively rate of
recidivism over a 15 year period from when they are released from prison.
I know your position is that at June 2001 he presents as a high risk of re-
offending and at June 2006 he presents
as a high risk of re-offending. What I
am asking is whether at June 2006 he presents higher, lower or the same in
ter
ms of risk of re-offending as in June 2001?....I would argue that Mr
Harbour remained at the same level of risk.
I
want to suggest to you that that's not in fact correct in terms of your
analysis that his level of risk is something approaching
half what it might be
in June 2001. What do you say about that?.....I would say that the level of
risk he poses is
still high...Certainly over time the longer an offender is free
the less likely they will re-offend. At four to five years
offence free given
that we know over a 15 year period that offenders continue to re-offend it is
still too early
to reduce that risk from high. So put another way there is still a
high likelihood at this time even though Mr Harbour has
not been re-
convicted or re-arrested over the last five years that he could well re-offend
over the next five to ten
years.
[16] Table 1 attached to the paper "The Static-AS: Development and Validation of
a Computer-Scored Risk Assessment Measure
Derived from the Static-99" which
relates to recidivism rates for all sexual offenders, shows that offenders assessed
under Static-AS
as high risk had a recidivism rate of 46% after five years, 50% after
ten years and 62% after 15 years. Table 2, which relates to
recidivism rates for child
sexual offenders, shows that offenders assessed under Static-AS as being in the high
risk category had
a recidivism rate of 28% after five years and 43% after 10 years.
[17] Mr Borich also challenged the validity of the Static-AS
because, having been
based on data gathered over the last six years or so, it has not yet been peer reviewed
or published. Ms Fon
rejected this, saying that the Static-AS more fairly represents
the circumstances in which assessments are being carried out in New
Zealand
because it is based on a New Zealand based offender population, the members of
which share common characteristics relating
to such factors such as terms of
imprisonment, treatment and conditions of release.
[18] In addition to the risk assessed under
the Static-AS Ms Fon also took into
account both static and dynamic risk factors she considered were present in Mr
Harbour's case.
These were:
· The intrusiveness/severity of the offending
· The presence of offence planning
· Use of weapons
· Use of force/coercion
· Increase in severity of sexual offending
· Diversification of victim selection from adults to children
· Tendency to rationalise and minimise his previous sexual offending
· Denial of need for
treatment to address sexual offending
· The fact that he does not consider himself to be at risk
· His
history of substance abuse contributing to offending
· History of poor mood regulation contributing to offending
· Poor social and inter-personal relationship skills
· Trend in evidence of sexual deviant pattern towards
children
· Time to sexual recidivism (between four and five-and-a-half years)
[19] Ms Fon also took into account
reported changes in Mr Harbour's personal
circumstances which could be regarded as positive, or protective, factors:
·
Released into the community for (now) five years without further
convict ions
· Improved marital
relations and communication skills
· Supportive marital and family relationships
· Apparent reduction
or abstinence from alcohol use
· Maintained full-time employment for the last approximately four
years
· Some evidence of management of high risk situation
[20] After taking all of these factors into account Ms Fon
concluded that:
When consideration is given to actuarial, clinical and collateral information,
ther e is convergence
in the totality of evidence to consider that Mr Harbour
has a high base line level of risk of committing a further sexual
offence
against a child or adult female.
Mr Harbour's Response
[21] Mr Harbour called a psychologist, Ms Bellve-Wack
to give evidence.
Ms Bellve-Wack was also experienced and well-qualified. She referred to the
Static-99 manual, noting
that Mr Harbour's predicted recidivism rate at point of
release from prison under that tool was estimated at approximately 38% and
after
five years offence-free living in the community, would be considered to be about
10%. She also used another risk assessment
instrument, the SVR20 Sexual Violence
Risk Scale 20, which includes both historical and dynamic factors and risk
management variables.
However, she did note that this instrument was not
specifically geared to sexual offending against children and nor did it
include victim
gender as a risk factor, despite strong empirical evidence showing that male
offenders who target same gender victims
have a higher frequency of recidivism.
[22] Apart from noting that the Static-AS (and indeed the Static-99) were
designed to
assess general sexual offending rather than specifically sexual offending
against children, Ms Bellve-Wack did not have any particular
criticisms of the
Static-AS. She considered that in the absence of research support for the Static-AS
in relevant peer review professional
journals the Static-99 should have been used.
But she did not express any particular reservation about the reliability of the data
used as the basis for the Static-AS.
[23] The emphasis in Ms Bellve-Wack's evidence was on the importance of
considering the
risk factors unique to Mr Harbour's case. She was critical of
Ms Fon's inclusion in the list of risk factors contributing
to Mr Harbour's sexual and
vio lent offending which were not present in the index offence, for example, the use
of weapons. She also
disagreed with Ms Fon's perception of a trend towards sexual
deviant patterns towards children when, according to Ms Bellve-Wack,
there was no
evidence of a history of sexual offending against children that would denote a trend.
[24] Further, Ms Bellve-Wack
noted that recent studies on sex offenders identified
only two domains as major predictors for recidivism, mainly deviant sexual
preferences and anti-social orientations (eg. anti-social personality or traits) though
this factor is predictive of general and
violent offending not specifically sexual
offending). Ms Bellve-Wack considered that Mr Harbour's history did not indicate
the presence of sexual deviance as such and that anger rather than sexual
deviancy
seems to have been the driving force. She perceived that this anger was rooted in
hypersensit ivit y towards rejection and
invalidation, poor and personal and problem
solving skills, inability to manage anger and negative mood, substance abuse and
social
isolation. She observed that some of these factors had been successfully
addressed through treatment and programmes.
[25] Finally,
she noted that it was important to view previous offending within the
psycho-social context in which it occurred, noting that at
the time of the index
offence Mr Harbour's social support systems, including his marriage, were not
funct ioning well and he did
not have satisfactory employment. She considered these
circumstances to be protective factors that should be taken into account to
a greater
extent than Ms Fon had done.
[26] Ms Fon responded to each of the criticisms raised by Ms Bellve-Wack in
some detail.
I do not need to traverse each of the points. However, I particularly
note her response to the criticism regarding the basis for
concluding a trend towards
sexual deviance, which I accept. Ms Fon considered that the index offence in itself
indicates sexual arousal
to deviant behaviour. She further noted that
Ms Bellve-Wack did not take into account the possession of the child pornography.
She also referred to studies in which prior sexual offences, history of unrelated male
vict im, diversity of sexual acts, juvenile
sexual offences and any paraphilia were
considered to be measures of deviance. Finally, she referred to recent research
indicat ing
that if an offender has offended against a male child he is 180 times more
likely to re-offend against another male victim when compared
to someone who has
offended only against a female child.
Decision
[27] It is clear that Mr Harbour has made good progress towards
reintegration into
the community. His family situation appears stable. His alcohol and substance
abuse appears to be under control
and he is in full-time employment. All of these
factors are positive and, assuming they are maintained, will stand him in good stead
in the coming years.
[28] However, I cannot ignore Ms Fon's assessment under the Static-AS, which
indicates a significant cumulative
risk over a 15 year period, which is not reduced by
virtue of the last five years of offence-free living in the community. I had
only one
reservat ion about Ms Fon's evidence, namely her treatment of the allegation reported
by Mr Harbour himself of inappropriate
touching of his niece as contributing to a
trend towards a pattern of deviant sexual arousal towards children. There was never
any
formal complaint recorded as a result of this incident and Mr Harbour never
faced any charges as a result of it. However, this was
only one of many risk factors
that Ms Fon identified. I am satisfied that even if the reported incidence did not have
any factual
basis Mr Harbour would nevertheless have been assessed as high risk
under the Static-AS.
[29] I am not persuaded that Ms Fon's
assessment is outweighed by the various
protective factors identified by Ms Bellve-Wacke. Not only do I accept Ms Fon's
evidence
that the risk of recidivism is largely unaffected by such factors but there
must also be a risk that some of these factors may change.
If Mr Harbour's family or
emplo yment situation should alter he would then face stresses that are not presently
operating in his
life. If he were to begin drinking again then the risk he presents
would, even on Ms Bellve-Wacke's view, increase. Overall, I am
satisfied that there
is a likelihood of Mr Harbour committing further relevant offences in the future and
therefore grant the application
for the extended supervision order.
____________________
P Courtney J
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