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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI.2007 404 000115
CHIEF EXECUTIVE OF THE
DEPARTMENT OF CORRECTIONS
v
WILLIAM PENE
Respondent
Hearing: 15 October 2007
Counsel: Catherine Knight for Applicant
John
W Mackey for Respondent
Judgment: 19 October 2007
RESERVED JUDGMENT OF WILLIAMS J
This judgment was delivered by
Hon. Justice Williams
on
19 October 2007 at 3:00pm
Pursuant to Rule 540(4)
of the High Court Rules
............ ......... ......... ......... ......... .....
Registrar/Deputy Registrar
Date:......... ...... ......... ...
____________________________________________________________________
The application by the Chief Executive for an Extended Supervision Order
under s 107F against the respondent, Mr Pene, is granted
and the term imposed
is the maximum statutory term of 10 years. The ESO is to take effect from
17 April 2008, the date Mr Pene completes
parole.
CORRECTIONS DEPT V PENE HC AK CRI.2007 404 000115 19 October 2007
Introduction
[1] On 18 April 2007 the Chief Executive
of the Department of Corrections,
acting through a delegate, applied for an Extended Supervision Order ("ESO") under
s 107F of the
Parole Act 2002 against the respondent, Mr Pene.
[2] That application was opposed by Mr Pene on 10 October 2007, though his
opposition was directed more to the length of the proposed order than to its making.
Facts
[3] On 2 August 2001, following
pleas of guilty, Mr Pene was sentenced to a
total of six and a half years' imprisonment, six years on two representative charges
of counts of sexual violation by unlawful sexual connection, a concurrent term of
three years' imprisonment on one count of doing
an indecent act on a boy aged
between 12-16 years, and six months' cumulative imprisonment on a charge of
indecent assault on a male
over 16 years.
[4] In addition, Mr Pene was sentenced to what would appear to have been a total
of eight years' imprisonment
in 1993 for seven counts of indecent assaults on boys
and unlawful sexual connection. In1972 he was also fined and ordered to come
up
for sentence if called upon on four charges of inducing a boy to do an indecent act on
him.
[5] Both sexual violation by
unlawful sexual connection and indecent assault
come within the definition of "relevant offence" in s 107E (2).
[6] The New
Zealand Parole Board made an order against Mr Pene under s 107
that he not be released before his parole eligibility date, 18 July
2007, three months
before his sentence expiry date.
Legal Issues
[7] Section 107I gives the Court power to make an ESO. It
relevantly reads:
107I Sentencing court may make extended supervision order
(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
of the relevant offences referred to in section 107B(2) on ceasing to be an
eligible offender.
...
(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.
[8] The purpose of, and criteria
attaching to, ESOs is as set out by the Court of
Appeal in R v Peta CA48/06 [2007] NZCA 28, 28 February 2007 paras [5]-]11]:
Overview of the ESO regime
[5] The ESO regime came into force on 7 July 2004. It
is designed to protect
the public from those who pose a real and ongoing risk of committing sexual
offences against children
or young persons: see s 107I(1) of the Parole Act
2002. In order to be eligible for the imposition of an ESO, an offender must
have committed and been sentenced to imprisonment for a "relevant
offence" as specified in s 107B, which effectively
includes all sexual
offences committed in respect of persons under the age of 16 years.
Application for an ESO must be
made while the offender is still in prison
(whether or not the latest sentence expiry date was for the relevant offence)
or is subject to release or detention conditions: see s 107F(1).
[6] Before imposing an ESO, the Court has to be satisfied,
after considering
a health assessor's report, that the offender is likely to commit any of the
relevant offences in the
future: see s 107I(2) of the Act. Section 107F(2)
sets out the factors that a health assessor's report must address, preferably
directly but it may do so by inference: see Grieve v Chief Executive of the
Department of Corrections (2005) 22 CRNZ 20 at [14] and [25]. The s
107F(2) factors are:
(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.
[7] The making of an ESO is a judicial decision and not that of the health
assessor: see Grieve at [15]. In Barr v The Chief Executive
of the
Department of Corrections CA60/06 20 November 2006 at [32], this Court
warned against merely rubber-stamping health assessors'
reports. It said:
[32] We wish to make it clear, however, that first instance Judges
need not accept it as necessary,
or right, to rubber stamp opinions of
health assessors advanced by the Department of Corrections in ESO
applications
(and we make it clear that the Judge did not do that in
this case). What is required is a careful assessment of all the
historical and current factors, along with expert opinions of others,
bearing in mind that an ESO can have substantial
ongoing impact on
an offender who has already completed the sentence imposed by the
Court for the offending. The
risk of re-offending has to be such that
cannot properly be ignored when viewed against the gravity of likely
re-offending.
Naturally, every case requires individual judgement
and assessment. Jurisdiction to make the ESO arises only if there is
a real and ongoing risk of committing relevant sexual offences.
[8] The Judge's decision to impose an ESO must be made on
the basis of the
test set out in s 107I(2) in light of the factors set out in s 107F(2)(a) (d) and
any other relevant factors.
The effect of that statutory test is that the
jurisdiction for making an ESO depends on the risk of relevant offending
being both
real, ongoing and one that cannot sensibly be ignored having
regard to the nature and gravity of the likely re-offending: see R v
Belcher
[2007] 1 NZLR 507, 512 at [11].
[9] The term of any ESO must be the minimum period required for the safety
of the community in light of the level
of risk posed by the offender, the
seriousness of the harm that might be caused to victims and the likely
duration of the risk: see
s 107I(5). The term cannot exceed ten years: see s
107I(4).
[10] This Court in R v Brown (2005) 22 CRNZ 233 at [51](b) and [53]
accepted the thrust of a Crown submission that, in setting the term of any
ESO, the Court is not concerned with
ensuring that the term is proportionate
to the offences that have already been committed, but with managing the
risk of
future offending. While the statement is correct as far as it goes,
proportionality in relation to likely future offending
is a relevant factor in
setting the term of an ESO in the same way that there is an element of
proportionality in deciding
whether or not an ESO should be imposed: see
the test enunciated above at [8]. This follows from the reference in s
107I(5)(b) to the seriousness of the harm that might be caused to victims.
The more serious the likely future offences, the
more serious the harm would
usually be to victims. We also note that the likely seriousness of future
offences is usually
best predicted by reference to past behaviour (as
discussed below at [45]).
[11] That said, the main focus in setting
the term of any ESO must be on the
safety of the community and, in particular, that of children and young
persons,
in light of the factors set out in s 107I(5). In Belcher, at 535 at
[108], this Court approved the comments of the Full Court
of the High Court
in Chief Executive of the Department of Corrections v McIntosh HC CHCH
CRI 2004-409-162 8 December
2004 at [27] that orders are not to be made
for the minimum period required to facilitate treatment but rather for the
minimum period required to achieve protection of vulnerable members of
the community
[9] In helpful submissions filed
on behalf of the Chief Executive and with the
legal content of which Mr Macky, for Mr Pene, did not disagree Ms Knight
submitted
that "satisfied" for the purpose of s 107I(2) has the same meaning as it
does in relation to sentences of Preventive Detention, namely
that it "means simply
`makes up its mind' and is indicative of the state where the court on the evidence
comes to a judicial decision"
(R v Leitch [1998] 1 NZLR 420, 428).
[10] Since the nub of Mr Pene's opposition to the ESO lay primarily in the
conditions and duration of the order, it is
pertinent to note Ms Knight's submissions,
first, that any special conditions to be imposed on a person subject to an ESO beyond
the standard release conditions are for the Parole Board to specify under s 107K, and,
secondly, that either party can apply to the
Court to cancel an ESO or to the Parole
Board to vary the conditions. As the Court of Appeal said in Peta (at para [14]), that
capacity
provides a safeguard for persons subject to ESOs if they take the view their
risk to the community has been diminished or they have
been wrongly assessed.
Health Professional's report
[11] The statutory requirement for the provision of a health professional's
report
was met in Mr Pene's case by the preparation of a report dated 19 March 2007 by a
Ms Mullan, a registered psychologist.
She was also called to give evidence at the
hearing.
[12] It is necessary to consider the salient terms of her report but, in
view of the
limited nature of Mr Pene's opposition to the application, it is unnecessary to recount
much of the detail.
[13]
After noting Mr Pene's wariness about the interview process and the
measures taken to ensure his understanding and alleviate his
concerns, the report
summarised the facts leading to Mr Pene's 2001 sentencing and summarised his
earlier similar offending. The
report noted Mr Pene declined to participate in
treatment programmes including at Te Piriti Special Treatment Unit during his
earlier sentencing and his admission of being involved in sexual behaviour with
other prisoners during both periods of imprisonment.
The suggestion was that such
behaviour covered both consensual and non-consensual activity.
[14] The report noted that once Mr
Pene's significant intellectual disabilities were
discovered during his latest term of imprisonment, he was offered a place on the
Adapted Programme for sex offenders. That is a programme specifically designed
for men who have difficulty understanding the standard
programme. Mr Pene
declined to participate, reaffirming that after the s 107 order was made in relation to
him.
[15]
The likelihood of Mr Pene committing any "relevant offence" in the future
was assessed pursuant to the Static-AS, the Psychopathic
Checklist: Screening
Version (PCL:SV) and the STABLE-2000 instruments.
[16] The first utilizes risk factors shown to be associated
with sexual recidivism.
It is said to have "acceptable predictive accuracy". Mr Pene's assessment on Static-
AS was that he had a
"medium low" likelihood of sexual reoffending within five
years of release with a risk extending to 10 years, though Static-AS had
a deficiency
in Mr Pene's case as it does not pick up sexual offending resulting in a fine nor
victims who are unrelated to the offender.
Mr Pene has had five of the latter.
[17] Mr Pene was assessed at being at "moderate risk for serious reoffending"
under PCL:SV.
[18] Ms Mullan said STABLE-2000 at this stage has only "limited demonstrated
predictive validation". Mr Pene had a high score
on this scale including for factors
such as sexual self-regulation Mr Pene reported a high sex drive attitudes
supportive of
sexual assault a 2006 report indicated Mr Pene had a sense of
entitlement to sex with his partner at an inappropriate time co-operation
with
supervision in which Mr Pene's refusal to participate in the Te Piriti programme
was significant and general self-regulation
including an inability to explain how
he would avoid future offending.
[19] The report continued that "whilst he has now stated
he would attend the
SAFE programme upon release it is noted that his co-operation with Correctional
staff has indicated that he may
easily change his mind" and summarized the
assessment in the following terms :
[23] In summary, assessment of Mr Pene's
risk of further serious sexual
re-offending using information on noted clinical risk factors, as well as the
Static-AS, PCL:SV and items from the STABLE-2000
finds support from
these multiple sources that there is a medium-high risk of Mr Pene
committing a further relevant
sexual offence while in the community.
[20] Ms Mullan then considered the risk posed by Mr Pene with reference to the
matters
listed in s 107F(2) which reads:
107F The Chief Executive may apply for extended supervision order -
...
(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.
[21] Ms Mullan's conclusion concerning (a) was that any future sexual offending
by Mr Pene would include indecent assault or unlawful
sexual connection with
males, both under and over 16, including family members or associates.
[22] The factors affecting Ms Mullan's
conclusion in relation to (b) included the
motivation for Mr Pene's earlier sexual offending, its duration, the suggestion the
offending
occurred as a means of managing his mood and sexual tensions and his
sexual behaviour with other prisoners including possible non-consensual
contact
with young males. That lead to the conclusion that "he is unable to control his
sexual impulses even in a controlled setting".
[23] As to (c) Ms Mullan's conclusion was that "Mr Pene displays clear
entitlement beliefs regarding his need to have his sexual
needs met and a lack of
empathy towards his victims".
[24] In relation to (d) the report noted Mr Pene's lack of effort to address
his
offending.
[25] And in relation to other relevant factors mentioned in (e), Ms Mullan
recorded difficulties on Mr Pene's
part in managing his anger and concluded:
Mr Pene has been assessed as having a medium-high risk of re-offending
sexually.
In addition to the above it is noted that Mr Pene currently
experiences a number of health difficulties. These include cardiac
difficulties, diabetes, hypertension, gout and end stage renal failure. It
should be noted however that he had significant
health difficulties at the time
of his most recent offending and his current difficulties have not precluded
him from
engaging in sexual behaviour whilst in prison.
[26] Ms Mullan's "Risk Parameter Statement" said:
[24] If Mr Pene continues
to experience sexual and general self-
regulation difficulties and attitudes supportive of sexual offending couples
[sic] with a negative attitude toward supervision and monitoring and does
not complete an in-depth treatment programme aimed
at his sexual
offending, then there is a medium-high probability that he will engage in
further relevant sexual offences,
within ten years of release that may place
male victims under the age of sixteen and vulnerable adult male victims at
risk of indecent assault or unlawful sexual connection.
[27] She recommended the making of an ESO application for the "maximum
length available under the legislation due to the likely duration of his risk".
[28] In cross-examination, she acknowledged being
aware Mr Pene was on thrice-
weekly dialysis and had end stage renal failure, but adhered to her conclusions on the
basis that such had not arisen recently, yet Mr Pene had engaged in frequent sexual
conduct whilst in prison. She acknowledged that if Mr
Pene completed the SAFE
programme depending on a further assessment, the Department's stance to
continuation of the ESO under strict
conditions might possibly modify.
Submissions
[29] Mr Macky submitted the appropriate term for an ESO for Mr Pene would be
no more than three years, giving him an opportunity to complete the SAFE
programme as, he said, Mr Pene wished to do. He also made
the practical point that
Mr Pene was without funds to travel to Mt Eden Prison to undertake the SAFE
programme, his medical condition
was such he was unable to walk, and he requested
the Department assist with travel costs.
[30] In addition to her full submissions
earlier summarized, Ms Knight made the
point that contribution to travel costs was a matter for the Probation Service, not the
Department
of Corrections.
Discussion
[31] As noted, Mr Pene did not strongly contest that an ESO was appropriate.
Through Mr Macky, he
accepted that he should have undertaken the proffered
assistance and programmes whilst in gaol and that his failure so to do meant
he had
taken no steps to minimize his risk of reoffending. Through counsel he said he
wished now to undertake the SAFE programme.
That is to be commended, but the
Court has no power to order the same.
[32] The making of an ESO is accordingly appropriate
with the real question
being its proper duration.
[33] In that regard, there is no reason not to accept Ms Mullan's view that
without
Mr Pene undertaking appropriate assistance, the factors she reviewed mean the
likelihood of Mr Pene committing another "relevant
offence" will persist. Whilst
ageing and his medical problems are likely to play a part in diminishing the risk of
his reoffending,
there is force in Ms Mullan's observation that much of Mr Pene's
past offending has not involved a great deal of physical exertion
and, despite his
current medical problems, it seems highly likely he continued to engage in frequent
sexual behaviour up until his
release.
[34] There is accordingly no reason not to impose the maximum statutory term of
10 years on the ESO to be made against
Mr Pene.
[35] Whether, in the future, the Court may be likely to abbreviate that term
depends very much on whether Mr Pene
seeks assistance and successfully completes
the SAFE programme or other programmes available to him designed to reduce the
chance
of his continuing to reoffend sexually. While his current resolve to undertake
such programmes is to be commended, there is, as Ms
Mullan notes, evidence that
similar intentions in the past have not been followed through. It is therefore for
Mr Pene to undertake
an appropriate programme and then, if he still wishes to curtail
the term of the ESO, apply so to do and submit himself to further
assessment.
Result
[36] In the result, for the present, the application by the Chief Executive for an
Extended Supervision
Order under s 107F against the respondent, Mr Pene, is
granted and the term imposed is the maximum statutory term of 10 years. The
ESO
is to take effect from 17 April 2008, the date Mr Pene completes parole.
.........................................
WILLIAMS J.
Solicitors:
Crown Solicitor, Auckland, for applicant
Email: Catherine.Knight@meredithconnell.co.nz
Copy for:
Mr John Macky, P O Box 15 522 New Lynn, Auckland
Email: m.wins@xtra.co.nz
Case Officer: Taymuraz Zaseen, Criminal Registry, Auckland High Court
NZLII:
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