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Last Updated: 27 January 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-404-0398
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
v
PETER CHARLES PETERSON
Respondent
Hearing: 24 April 2008
Appearances: E Harrison for the applicant
B Sellars for the respondent
Judgment: 24 April 2008
(ORAL) JUDGMENT OF STEVENS J
Solicitors/Counsel:
Crown Solicitor, PO Box 2213, Auckland
B Sellars, Public Defence Service, PO Box 90243,
Auckland
DEPT OF CORRECTIONS V PETERSON HC AK CRI 2007-404-0398 24 April 2008
Introduction
[1] This is an application by the Department of Corrections (the
Department) for an extended supervision order (ESO) in respect
of the
respondent, Mr Peterson. The application is made pursuant to the provisions of
s 107F of the Parole Act 2002 (the Act).
[2] Ms Sellars represented Mr Peterson at the hearing. Evidence was
called on his behalf from a registered clinical psychologist.
The report,
which had been prepared for the purpose of his case, indicated that Mr
Peterson presented a high risk of re-offending.
The report accepted that an ESO
should be made.
[3] The sole issue for determination in respect of the application is
the period of such an ESO. The Department contended that
it should run for a
period of ten years. The respondent sought an order of five years duration. The
oral evidence heard in Court
this morning from two registered psychologists
focussed particularly on the issue of the appropriate application period of the
ESO.
The application
[4] The Chief Executive of the Department may apply to the sentencing
Court for an ESO in respect of an offender such as Mr
Peterson in the
circumstances provided for in s 107F of the Act. Any such application must be
in the prescribed form and be accompanied
by a report of a health assessor. The
report must address (without limitation) the matters set out in s
107F(2).
[5] The application filed by the Department was accompanied by a report
dated
17 October 2007 from Mr Anton Ashcroft, registered psychologist, who is a
senior psychologist with the Department. The report addressed
the various
matters that were required of such a report by s 107F(2)(a) to (e) of the
Act.
[6] A statement from Ms Katrina Casey, the General Manager of Probation and Offender Services with the Department, also accompanied the application. Her statement established inter alia that Mr Peterson was an eligible offender within the
meaning of s 107C of the Act and that the offences committed by Mr Peterson
were relevant offences under s 107B of the Act. Where
an application is filed
by the Department, the Court is required to hold a hearing at which it may take
into account any evidence
or information that it thinks fit for the purposes of
determining the application: see s 107H(2) of the Act.
Purpose of ESO
[7] The circumstances in which the Court may make an ESO are set out in
s 107I of the Act. That section also addresses
the purpose of an
ESO as being the protection of members of the public. Section 107I(1)
provides:
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.
[8] The jurisdiction to make an ESO is contained in s 107I(2) which
provides:
(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.
[9] The phrase “satisfied” has the same meaning as in
relation to the imposition of a sentence of preventive detention:
see R v
Leitch [1998] 1 NZLR 420 (CA) at 428:
The need to be “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, eg beyond reasonable doubt. As
this Court said in R v White
(David) [1988] NZCA 55; [1988] 1 NZLR 264 at p 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 adverbial qualification . . .”.
[10] In Chief Executive of the Department of Corrections v McIntosh HC CHCH CRI 2004-409-162 8 December 2004, John Hansen and Panckhurst JJ, applied that
interpretation of the term “satisfied” to the ESO regime set out
in s 107I. According to the Court of Appeal in
Belcher v Chief
Executive of the Department of Corrections [2006] NZCA 262; [2007] 1 NZLR 507 as
confirmed by the Court of Appeal in R v Peta [2007] 2 NZLR 67, the
issue for decision is normally whether “the risk of reoffending
[is] both real and ongoing
and one that cannot sensibly be ignored having regard
to the nature and gravity of the likely reoffending”.
[11] If an order is granted, the length of the ESO must, by virtue of s
107I(5) of the Act, be the minimum period required for
the purposes of the
safety of the community in the 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.
[12] I agree with the submission made by Ms Harrison, on behalf
of the Department, that protection of the community
is the guiding
consideration. The focus is on managing the risk of future offending. It is
true that an ESO may properly be
compared with an indeterminate sentence
where an offender is potentially subject to conditions and liable to be
recalled
for life. The focus of an ESO is not punishment of the offender but
protection of the community through risk management and rehabilitation.
The
important element of protection of the community was referred to in Belcher
at [11].
[13] With reference to the Court of Appeal decision of Peta, the
Court considered the scope of potential conditions that the Parole Board
imposed. At [13] Glazebrook J, giving the
judgment of the Court,
stated:
As the imposition of ESOs through the criminal justice system involves significant restrictions (including detention) on offenders and they are imposed in response to criminal behaviour, ESOs amount to punishment: see Belcher at [49]. Given this, it is perhaps surprising that more offenders have in the past not called their own evidence with regard to s 107F(2) factors (particularly of the individualised risk factors) when they seek to challenge the imposition of an ESO.
[14] The critical question then is whether the Court is satisfied that,
having considered the matters addressed in the health
assessors report
and any other evidence before the Court, the offender is likely to commit any
of the relevant offences referred
to in s 107B(2) on ceasing to be an eligible
offender.
[15] As already noted, the Department has sought an ESO for a period of
ten years. This is the maximum period permitted under
the Act: see s 107I(4).
But the period of any ESO must be determined by the Court against the
requirements of s 107I(5) already
referred to.
[16] Those factors clearly demonstrate the protective focus of
the statutory scheme in Part 1A of the Act. This feature
is emphasised in
McIntosh, where at [27] the Court stated:
...Put bluntly, orders are not to be made for the minimum period required to
facilitate treatment, rather, for the minimum period
required to achieve
protection of vulnerable members of the community.
[17] The Court of Appeal expressly approved this comment in Belcher
at [108].
The application
[18] With respect to the respondent, the application noted that on 17
November
2004 Mr Peterson was sentenced to four years’ imprisonment on the
following charges:
a) One charge of indecently assaulting a boy under the age of
16;
b) One charge of doing an indecent act on a boy under the age of 16; and c) One charge of sodomy.
[19] Those charges related to a 14 year old boy whom Mr Peterson had befriended through a shared interest in stock cars. When passing sentence in that case, Wild J stated that:
In terms of aggravating of concerning features, Mr Peterson, I see the
following. First, this was premeditated offending to a greater
or lesser extent
on all three occasions. It had the common feature of your preying on the
complainant with the inducements of cigarettes,
alcohol, and so on, and alcohol
featured particularly on the sodomy charge. ...
[20] Wild J also noted that Mr Peterson continued to deny his offending
and showed a lack of remorse.
[21] The application clearly establishes that the offences are relevant
offences for the purpose of an ESO. The application
is supported by the report
of a health assessor, Mr Ashcroft, to which more detailed reference is
required.
Reports of health assessors
Mr Ashcroft’s assessment
[22] In support of the written report, Mr Ashcroft gave evidence in Court
today. His report was produced as an exhibit and advanced
by the Department in
order to satisfy the requirements of s 107F(2). The report noted that Mr
Peterson was 64 years old. It discussed
the pattern of his many previous
offences and referred to previous psychological assessments. Mr Ashcroft
then provided
a summary in which he noted that Mr Peterson had experienced
some difficulties with regard to his sexuality. He observed that
Mr Peterson
may have viewed sex with teenage boys below the age of 16 as acceptable due to a
belief he was helping them and a view
that no offence was committed because it
was consensual.
[23] The report also dealt with treatment that had been made
available to Mr Peterson. It referred to his having completed
a full 33 week
Te Piriti treatment programme in 2006/2007. On the topic of potential to
re-offend, Mr Ashcroft stated:
During the current health assessment a number of actuarial instruments and consideration of noted clinical risk factors were used in this assessment to establish the probability that Mr Peterson would commit further sexual offences while in the community. These measures included instruments that assess static and dynamic risk factors for sexual recidivism. The use of such multi-method assessment strategies has been endorsed as the best approach to permit the determination of convergence among risk factors and to allow the assessment of independent contributions.
[24] Mr Ashcroft then referred to the first of two tests, the ASRS
(Automated Sexual Recidivism Scale) and found that, according
to this measure,
Mr Peterson was considered to present a high risk of re-offending. Mr Ashcroft
also referred to the STABLE 2000
assessment, which was developed to assess
dynamic predictors of sexual recidivism to add value to the assessment of static
risk measures.
He noted that the psychological report made in February 2007
rated Mr Peterson’s risk of re- offending, based on the STABLE
2000
measure, as being high and indicated an increased risk of sexual
recidivism.
[25] The reason that Mr Ashcroft referred to the 2007 psychological
report was that Mr Peterson did not attend the interview called
for the purposes
of preparing this report. Accordingly, Mr Ashcroft was unable to provide
evidence from an interview which might
have indicated any alteration in the risk
factors identified under the ASRS and STABLE 2000 measures.
[26] The report then listed the various risk factors as
follows:
• The large number of of his previous victims;
• Beliefs that condone sexual acts with individuals under
sixteen;
• Poor response to treatment;
• Poor previous response to supervision/parole;
• Non compliance with his current parole conditions.
In summary, assessment of Mr Peterson using information on noted clinical
risk factors, as well as the ASRS and available information
on dynamic risk
factors finds support from these multiple sources that there is a high risk of
Mr Peterson committing a further relevant
sexual offence while in the
community.
[27] The report then directly addressed the risk issues relevant to s 107F(2) of the Act. In particular: the likelihood of further sexual offending including the age and sex of the likely victims, Mr Peterson’s ability to control his sexual impulses, his
predilection and proclivity for sexual offending, and the issue of
acceptance of responsibility and remorse for past offending.
Finally, in terms
of any other relevant factors, Mr Ashcroft stated:
Mr Peterson was assessed as having a high rating on static risk factors using
the ASRS. His previous assessment using the STABLE
2000, a measure of dynamic
risk, indicated he fell into the high risk category of sexual
recidivism and showed high ratings
regarding lack of any social support systems
or an intimate partner, evidence of social loneliness, a lack of
concern
for others, the presence of deviant sexual interests and attitudes which
support sexual offending against children, limited skills
in effective emotional
regulation and difficulties in problem sovling.
Other risk factors that are present for him include the large number of his
previous victims, his early age at first offending, pro
sexual offence belief
systems, poor response to treatment, and poor previous and current response to
supervision/parole. Mr Peterson
also has a below average level of intellectual
functioning, which would be likely to exacerbate his impulsivity and poor
problem
solving abililties.
His current probation officer (15 October 2007) raised concerns that Mr
Peterson has placed himself in a higher risk environment
for repeat
offending, as he has moved out of his agreed accommodation, has placed himself
within ½km of two schools, and a
sports ground, and is ‘out and
about a lot, at Auckland library’. Subsequent to this interview, the
CPPS Incident Report for 13-16 October 2007 indicates Mr Peterson has
absconded, and a
warrant is out for his arrest.
Risk parameter statement: Analysis of these risk measures and specific
sexual offending factors for Mr Peterson, along with information
on his offence
pattern supports the following risk parameter statement:
If Mr Peterson continues (the following risk factors are present)
to be socially isolated, displays a lack of concern for
others, displays
attitudes which support sexual offending against children, displays limited
skills in effective emotional regulation
and difficulties in problem solving,
and a low compliance to the conditions of his parole, then there is a high
probability (high
ASRS & STABLE 2000 ratings) that he will engage
in sexual offending within five years, with the risk remaining for
ten years,
that may place underage males from 12 to 15 years, who are strangers to him, or
who he gets to know through a shared social
interest, at risk of indecent
assault, sexual violation, or abduction with sexual intent.
[28] On the basis of the findings in this report, Mr Ashcroft recommended
that the
Court impose an ESO for a period of ten years.
[29] Ms Sellars, appearing for Mr Peterson, called Mr Olaf Handrick, registered clinical psychologist, as a witness. He gave evidence in support of the contention that the period for which the Court should impose an ESO was five years, rather than the ten suggested by the Department. Mr Handrick produced his report dated 28
March 2008, in respect of which he had had the benefit of interviewing Mr
Peterson for a total of approximately three hours.
[30] Mr Handrick concluded that Mr Peterson’s risk of sexual
re-offending was high with his risk parameters statement having
a
“tentative validity of up to five years” on account of the research
evidence discussed in his report. This research
dealt with sexual re-offending
and the impact of an aging offender population. At paragraphs 26 to 28, Mr
Handrick outlined Mr Peterson’s
psychiatric history. He then
added:
There is some concern that should Mr Peterson receive a long term of
extended supervision that his mental state will
deteriorate, which may
increase his risk of sexual re-offending.
[31] At paragraph 48, Mr Handrick stated:
In my clinical opinion Mr Peterson’s high risk would translate into
imminent and high management and treatment needs but
not necessary in
to a prolonged period of Extended Supervision of 10 years as recommended in a
psychological report compiled
by the Department of Corrections. Most
importantly the quality of the supervision relationship would impact on the
duration
of Mr Peterson’s risk of re-offending.
[32] Accordingly, Mr Handrick made a recommendation for a highly managed
supervision regime of shorter duration in the context
of a 64-year-old
displaying behaviour features amenable to treatment and aging.
[33] Mr Handrick also used the Static-AS measure. Mr Peterson’s score again indicated a high risk of sexual re-offending whilst in the community. However, at paragraph 50, Mr Handrick noted that the developer of that measure and other scales cautioned the user that on average the rate of sexual recidivism decreases with age. This was a point that Mr Ashcroft accepted in his evidence as a general proposition. But Mr Ashcroft went on to note that the pool of research relating to offenders of
advancing years was particularly small and accordingly he considered that one
had to be cautious about relying on the general proposition.
[34] On the other hand, Mr Handrick estimated that the rates of
recidivism given by actuarial methods could over-estimate rates
for older men,
being the category of offender to which Mr Peterson belonged. Mr Handrick,
however, recognised the inherent difficulties
in applying general findings in
the literature to Mr Peterson, given that the research literature is replete
with findings from larger
samples and samples of sex offenders in their youth
and middle years. At paragraph 56 of his report, Mr Handrick stated:
Mr Peterson’s pattern of offending is evidence of sexual deviation,
also called Paraphilia in the Diagnostic and Statistical
Manual of
Mental Disorders (DSM IV). This refers to a relatively stable pattern of
sexual arousal to inappropriate stimuli.
In Mr Peterson’s case his sexual
offending indicates the presence of a particular paraphilia’s, namely
paedophilia,
as demonstrated by his persistent choice of a child as sexual
object and by his apparent inability to stop this behaviour despite
the
distress, anxiety and fear of discovery. It should be noted that sexual
deviance in combination with psychopathy is considered
as one of the most robust
predictors for future sexual offending. However a general decline in arousal
responses were noted in
most recent research, conducted by Barbaree et al.
There are good reasons to question the notion that sexually motivated behaviours
of any type, paraphilic or conventional, would continue unabated
throughout a man’s middle years and into old age.
Such an expectation is
at variance with the known facts of human endocrinology, specifically, findings
concerning testosterone and
age. Numerous studies have established that
bio-available testosterone peaks in early adulthood and thereafter decreases
with age
through the remainder of the life span.
[35] Mr Handrick was of the opinion that the biological changes that
accompany ageing should be considered when assessing the
likely duration of risk
presented by Mr Peterson. From there, Mr Handrick opined that an ESO of five
years, coupled with a highly
effective management and supervision regime, would
offer a greater probability of compliance from Mr Peterson.
[36] In conclusion, Mr Handrick noted that Mr Peterson’s declining
health and increasing age meant that a shorter period
of an ESO with more
intense supervision would be appropriate.
[37] With reference to s 107I(5) of the Act, the key issue for the Court
is what is the minimum period required for the purposes
of the safety of the
community in the light of the factors mentioned. During the hearing of the
evidence, the statutory requirements
were referred to Mr Ashcroft. In light of
the three factors in s 107I(5) and the high level of risk presented by Mr
Peterson, Mr
Ashcroft was asked whether the Court might responsibly determine a
minimum period for the ESO of eight years. Mr Ashcroft responded
in the
affirmative, adding that “there is a degree of uncertainty here and
I think the possibility of eight years
is a reasonable term given that
uncertainty”. When asked, based on his evidence, whether he would see a
minimum period of
eight years as being required, Mr Ashcroft added that
“for the safety of the community”, he would.
[38] A similar discussion took place with Mr Handrick. He was asked
about the various factors that might influence the duration
of Mr
Peterson’s high level of risk. The notes-of-evidence record his evidence
at page 12, lines 11 – 26 as follows:
...I took a starting point of 5 yrs because in my clinical opinion the risk
assessment tool of Mr Ashcroft the Stable and Acute ...
beyond professional
doubt justify 5 years. Going further up between 4 to 8 yrs there is statistical
uncertainty ... additional clinical
judgment involved to estimate the risk.
Coming from the point mentioned before, the acceptance of a extended
supervision order
is also quite important, if someone rejects the extended
supervision order and chooses to re-offend despite a lengthy supervision
order
nothing is achieved in terms of protecting the victim therefore from a
procedural point of view I choose the duration of 5
years. Having heard Mr
Ashcroft’s argument there is no strong argument against it to extend it to
8 yrs for example given
that Mr Peterson has a chance to demonstrate he is able
to comply with the supervision conditions, further data gather during that
process by applying the Stable and Acute every year.
[39] The question was then put: “if it were eight years it would
still be open to
Mr Peterson to apply for a cancellation?” Mr Handrick then
responded:
... exactly and during that time data can be gathered using the Stable and Acute and given my understanding it is a standard procedure during an extended supervision order and dynamic risk factors which are changeable either to increase or decrease the risk are getting collated in a systematic way and would allow Mr Peterson to apply for a cancellation if he demonstrates he is able to benefit from that intervention or the Dept of Corrections to
apply for extension for a further 2 yrs if Mr Petersonn poses still an
ongoing high risk.
Discussion
[40] It is important to recognise that, when considering the length of
any such “minimum period” for an ESO, the Court
should appreciate
the restrictive features of such an order. The Court of Appeal in Peta
stated at [56]:
An ESO has the potential to place major restrictions on the freedom of
movement and freedom of association of an offender: see at
[12] above. This
makes it even more important than in the ordinary course of cases for a Judge,
when imposing an ESO, to explain
clearly to the offender why such an order is
being made. This entails more than a mere reference to the health
assessor’s report.
More importantly, however, a health assessor’s
report should not merely be rubber stamped...
[41] The Court of Appeal went on to discuss the role of the Court at [57]
as follows:
A Judge is, of course, perfectly entitled to accept the evidence of a health
assessor, particularly in a case where no contrary
evidence has been
presented. It must, however, be explained why the evidence was accepted and why
that leads, on an individualised
assessment, to the conclusion that the
statutory test for the imposition of an ESO is met. In a case where there is a
history of
serious sexual offending, where no countervailing factors are
identified, where the [Automated Sexual Recidivism Scale] and
[Sex
Offender Needs Assessment Rating] assessments and any individualised risk
factors suggest a high risk of re-offending against
children, the
Judge’s reasons can be relatively brief. ...
[42] Having carefully considered the contents of the reports from both Mr Ashcroft and Mr Handrick and the evidence of each given in Court today, I conclude that Mr Peterson is likely to commit relevant offences on ceasing to be subject to any release conditions or from the sentence expiry date. I accept the views expressed by Mr Ashcroft in his report and in his evidence that Mr Peterson does pose a real and ongoing risk of committing sexual offences against children and young persons, particularly young boys in the age group 12 to 16 years. Accordingly, the making of an ESO is necessary to protect members of the community from him.
[43] In terms of the length of such order, I consider that the evidence
in the reports and the passages from the evidence referred
to above provide
clear support for an ESO of eight years. I base this assessment upon the risks
posed by Mr Peterson to children
and young persons in the community, the
seriousness of the harm that might be caused to such persons as potential
victims and what
I assess, based on all the evidence before me, as being
the likely duration of the risk. In reaching this decision,
I have
taken into account the three factors in s 107I(5) of the Act.
[44] Whilst there might well have been a case for an ESO of ten years
duration, nevertheless, I must take into account the fact
that the statutory
direction in s 107I(5) of the Act is that the term of the order must be the
minimum period required for the purposes
of the safety of the community.
Bearing in mind Mr Peterson’s age and the various risk reducing factors
referred to in the
evidence, I consider that a period of eight years fulfils the
statutory requirement.
[45] In fixing the period at eight years, I note that s
107I(6) of the Act contemplates the possibility of successive
ESO
applications, and also that an extension of an existing order is possible under
the provisions of s 107N of the Act, provided
that the period of the orders
concerned does not exceed ten years. In Chief Executive of the Department
of Corrections v Taha (2006) 22 CRNZ 453 the duration of the order
was fixed at five years. Although the term of the order had not been fixed by
reference
to the availability of an extension, Panckhurst J noted at [38] that
“their existence provide[d] comfort against the possibility
of
regression...”. This is the same point that was made by Mr Handrick in his
evidence quoted at [39] above.
[46] There is also the possibility that in the future, Mr Peterson might be able, with the intervention of the Probation Service, to make changes to his life. Should he do so, it is open for him, where supported by the appropriate material, to make an application for the ESO to be cancelled: see s 107M of the Act.
Result and start date for the ESO
[47] For the reasons set out above, I find that an ESO should be imposed
on Mr Peterson for a period of eight years. The start
date for the ESO should
be today’s date.
[48] Ms Harrison for the Department did not seek any special conditions.
Accordingly, I direct that the standard conditions in s
107JA of the Act are to
apply.
[49] The Department did not seek any order for costs and no order is
made.
Stevens J
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