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High Court of New Zealand Decisions |
Last Updated: 1 March 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2005-404-124
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
v
T H M
Respondent
Hearing: 3 March 2010
Appearances: A R Longdill for Applicant
A J Holland for Respondent
Judgment: 11 March 2010
RESERVED JUDGMENT OF ELLIS J
This judgment was delivered by me on 11 March 2010
at 11 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140
Public Defence Service, PO Box 76715, Manukau 2241
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS V M HC AK CRI 2005-404-124 11
March 2010
[1] This is an application by the Department of Corrections for an Extended Supervision Order (ESO) in respect of the respondent, Mr M . The application is made pursuant to the provisions of s 107F of the Parole Act 2002 (“the Act”).
[2] Mr Holland represented Mr M at the hearing. No evidence was called on
his behalf. Mr Holland indicated that Mr M accepted that an ESO should be made; the sole issue for determination in respect of the application being the period
of such an ESO. The Department contended that it should run for a period of
10 years. Mr Holland said Mr M sought an order of only four years duration. The evidence lead by the Department from a registered psychologist (Ms Isaacson) focused both on the issue of whether an ESO should be made but also the length of any such ESO.
The Application and Timing Issues
[3] The Chief Executive of the Department of Corrections may apply to the sentencing court for an ESO in respect of an offender such as Mr M in the circumstances provided for in s 107F. Any such application must be in the prescribed form and be accompanied by a report of a health assessor. The report must address the matters set out in s 107F(2).
[4] The present case is somewhat unusual in that the original application for the ESO was filed almost exactly five years ago, on 4 February 2005. That application (which followed Mr M ’s release from jail in 2004) was accompanied by a report from Ms Fon (a senior psychologist) in which she recommended that an ESO be made. However, the report noted that the community probation service had been unable to locate Mr M , that he had failed to report as required since May 2004 and that breach action had been initiated with respect to non-compliance with his release conditions. Section 107G(3) of the Act provides that an offender who is the subject of an application for an ESO must be present at the hearing of the application and must be represented by counsel.
[5] Subsequently a warrant for Mr M ’s arrest was issued but he was not in fact located until the end of August 2009 and it was only while appearing in Court on a
charge of breaches from 2005 that he was served with notification of the ESO application. It appears that Mr M had frustrated efforts to locate him for over four years by frequently changing his address and also by changing his name by deed poll. The Court was advised that Mr M had used over 10 aliases during that time.
[6] Mr M ’s prolonged disappearance gives rise to a unique feature of the present application, namely that there is no evidence of any reoffending by him since
his release from prison in 2004. The Department accepts that no complaints have been made against Mr M in his original name or under any of his other aliases. That said, however, the Department does not accept that the absence of any known criminal activity is indicative of a lessened risk from Mr M to the community in terms of the ESO criteria. In fact, as will be discussed later, the Department contends that the absence of information about Mr M ’s whereabouts and activities
for the last five years is, in itself, information that is relevant to the ESO application.
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:
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:
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 word “satisfied” has the same meaning as it does in relation to the imposition of a sentence of preventive detention: see McDonnell v Chief Executive of
the Department of Correction[1] confirming the decision in R v Leitch[2] in this respect.
[10] According to the Court of Appeal in Belcher v Chief Executive of the Department of Corrections[3] and as confirmed by that court in R v Peta[4], the issue for decision is normally whether the “risk of reoffending [is] both real and on-going and one that cannot sensibly be ignored having regard to the nature and gravity of the likely reoffending”.
[11] As to the “likelihood” threshold contained in s 107I(2), the Court of Appeal
in McDonnell reaffirmed at [76] its earlier interpretation in Belcher No 1 that:
... “likely” refers to a risk of relevant offending that is “both real and ongoing and one that cannot sensibly be ignored having regard to the nature and gravity of the likely re-offending.”
[12] 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 taking into account:
a) The level of risk posed by the offender;
b) The seriousness of the harm that might be caused to victims; and
c) The likely duration of the risk.
[13] The protection of the community is the guiding consideration: Belcher No 1
at [11]. The focus is on managing the risk of future offending. The focus of an ESO is not punishment of the offender but the protection of the community through risk management and rehabilitation.
[14] The critical question then is whether the Court is satisfied that, having considered the matters addressed in the health assessor’s 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] In terms of the duration of an ESO, 10 years is the maximum period permitted under the Act: see s 107I(4). As I have said the period of any ESO must
be determined by the Court against the requirements of s 107I(5). Those factors clearly demonstrate the protective focus of the statutory scheme in Part 1A of the Act. This feature was emphasised in Chief Executive of Department of Corrections v McIntosh[5] where at [27] the Court stated:
... Put bluntly, orders are not to be made for them minimum period required
to facilitate treatment, rather, for the minimum period required to achieve protection of vulnerable members of the community.
[16] The Court of Appeal expressly approved this comment in Belcher No 1 at [108].
Approach to the Present Application
[17] As I have stated at the beginning of the judgment, the imposition of an ESO
is not opposed by Mr M per se, his focus rather being on its length. It seems to me, however, that I am nonetheless required to satisfy myself that an ESO is warranted at all on the basis of the evidence before me before proceeding to the issue
of duration. I note that this was the approach taken by Stevens J in similar circumstances in Chief Executive of the Department of Corrections v Peterson.[6]
The Relevant Offending
[18] In early 2004 Mr M was found guilty of three counts of indecent assault.
In addition he pleaded guilty to two charges of common assault and one charge of failing to answer bail. Mr M was also found not guilty on a charge of sexual
violation, although it transpired, after polling, that the jury were not agreed on that
verdict. Nonetheless he was discharged on that particular count. Another charge of attempted sexual connection was taken from the jury by the trial Judge, Heath J, at the end of the Crown case.
[19] In all instances the complainant was [x], who at the time, was
14 years old.
[20] In sentencing Mr M to a cumulative term of two years imprisonment, Heath J took into account the aggravating features of Mr M ’s offending. Those were that there was a degree of force used to overbear [x]’s dissent, the abuse of his position of trust in relation to [x] and his previous convictions (albeit for matters primarily relating to dishonesty and disobedience of Court orders).
In addition, the offending occurred in a family home late at night, and it involved skin to skin touching and the assault involved a closed fist blow to the head from an adult to a child. A submission by Mr M ’s counsel that the touching was therapeutic in nature rather than indecent was rejected.
[21] There is no question that the three counts of indecent assault on which Mr M was convicted are, due to the age of the complainant, relevant offences in terms of s 107B.
The Evidence
[22] As I have stated, the original application made in 2005 was accompanied by a report from Ms Fon. The report was relatively brief, no doubt in part due to the fact that Mr M could not be located for the purposes of an interview. The level of Mr M ’s risk was therefore determined from file information only and my understanding is that reliance was not placed on that report by Ms Longdill for the Department at the hearing before me. Rather, the focus of both that hearing and this judgment is on the much more detailed report prepared with the co-operation of Mr M by Ms Isaacson.
[23] The upshot of the report was that Mr M was assessed as likely to commit further relevant sexual offences against male children or adolescents, with his
victims likely to be male members of his whanau, but possibly other young boys with whom he has nurtured a trusting, influential relationship. It concluded that Mr M ’s assessed risk level remains stable over an extended period of time, with the risk remaining over a 10 year period.
[24] Ms Isaacson’s in her oral evidence summarised the key findings in her report. Those findings were based upon her use of four psychometric screening instruments: the Automated Sexual Recidivism Scale (ASRS), Psychopathy Checklist: Screening Version (PCL:SV), STABLE 2007 and ACUTE 2007. The purpose and function of the first two of these instruments have been conveniently set out by the Court of Appeal in McDonnell at [89](a) and (d). The predecessor to STABLE 2007 (STABLE 2000) was also discussed by the Court at [89](f). By contrast with STABLE 2007, which assesses stable or static dynamic factors that are relevant to the likelihood of sexual recidivism, ACUTE 2007 assesses acute dynamic factors that research has shown to have the ability to predict sexual recidivism in the short- term.
[25] On the ASRS Mr M is assessed as being in the medium-high risk category, which means, in practical terms, that he is twice as likely to sexually reoffend as the average offender.
[26] As regards the PCL:SV assessment (which as its full name suggests goes to the presence of psychopathy), Mr M was found to have a total score above the average found for New Zealand offenders. In this context Ms Isaacson expressed the view that Mr M ’s interpersonal and affective deficits and his antisocial behaviour and lifestyle placed him within a group of offenders with a 65 per cent chance of re- imprisonment within 5 years (although not necessarily for sexual offending). Additionally, Ms Isaacson noted that the presence of both psychopathy and sexual deviance in Mr M are together predictive of sexual recidivism and heightened risk, which without management, would not diminish over time.
[27] The ACUTE 2007 measure indicated three specific areas pertaining to
Mr M that require monitoring: victim access, rejection of supervision and collapse
of social supports.
[28] On STABLE-2007 Mr M was assessed as high risk, when regard was had
to the following relevant areas:
a) lack of concern for others;
b) impulsivity;
c) negative emotionality;
d) deviant sexual preference;
e) poor cooperation with supervision f) limited positive influences;
g) emotional identification with children h) general social rejection;
i) poor problem solving skills;
j) sex drive/preoccupation.
[29] In relation to a number of these problem areas (in particular (c), (f), (g), (h) and (j)) Ms Isaacson reached her conclusions notwithstanding averments to the contrary that had been made to her by Mr M during her interview with him. The basis upon which she felt able to do so was made clear both in the report and in her oral evidence.
[30] More specifically, Ms Isaacson noted the absence of any collateral corroborating information as to Mr M ’s changed behaviour and circumstances. Importantly, she said that when she attempted to contact potential collateral sources that Mr M had given to her, she found that those sources did not exist. The specific example given by Ms Isaacson during re-examination was that Mr M had informed her that he had been working as a teacher at a school in the Tauranga area since 2005. However when she made efforts to contact the principal of the school (whose name and telephone number had also been provided by Mr M ) it transpired that neither the school nor the principal in fact existed. Other similar instances, such as providing false information to his current supervising probation officer, were given in the report.
[31] Ms Isaacson also noted that Mr M has not participated in any treatment or intervention aimed at addressing his offending related needs and assessed his motivation to do this (i.e. to address his offending) as low.
[32] Ms Isaacson concluded her report by specifically addressing each of the
s 107(4) criteria and stated that, in her view, there is a high probability that Mr M will engage in serious relevant sexual offending within the community and that this risk is not expected to diminish over a 10 year period.
[33] In terms of the duration of the risk posed by Mr M , Ms Isaacson’s oral evidence was that:
to increase from 7 per cent to 16 per cent over a 10 year period;
[34] Mr Holland’s cross-examination of Ms Isaacson focused on two principal issues:
[35] As regards the former issue, Ms Isaacson’s response was that other allegations of materially similar offending were relevant to the assessments tools she had used, regardless of the fact that those allegations had not ultimately been proved in legal terms. She said:
For us to do [a] thorough risk assessment [we] often rely heavily on the summary of facts because it gives what happened outside the courtroom and more the picture of what happened in terms of risk assessment ... I also think there were too many similarities between the sexual offending and the offending against [x] not to include it.
[36] Ms Isaacson’s stance appears to derive support from the terms of s 107F(3), which (since 2007) has provided that:
To avoid doubt, in addressing the matters listed in subsection (2), the health assessor may take into account any statement of the offender or any other person concerning any conduct of the offender, whether or not that conduct constitutes an offence and whether or not the offender has been charged with, or convicted of, an offence in respect of that conduct.
[37] It is also consistent with the Court of Appeal’s approach in McDonnell where
it stated at [103]:
Baragwanath J held (at [81]) that a court should not consider a Static-99 score that takes into account the presence of prior charges of, as opposed to convictions for, sexual offending. The Judge noted that an expert opinion must be confined to facts proved, and that the presumption of innocence should apply to allegations of past criminal conduct. We respectfully disagree: prior charges are statistically significant and their use is required by the Static-99. We do not see the presumption of innocence as bearing on the statistical propriety of including given variables in an actuarial risk assessment, particularly in this case where the instrument gives reduced weight to charges compared with convictions. There was an adequate evidential foundation for the existence of prior charges against the appellant and, in the absence of any challenge to this, we see nothing inappropriate in them contributing to his overall Static-99 score.
[38] It seems that in the present case a Static-99 assessment was not specifically undertaken by Ms Isaacson, although I note that an ASRS assessment (which was undertaken) is based on (or in the words of the Court of Appeal in McDonnell is a “shortened version of”) the Static-99 assessment. Under cross-examination, Ms Isaacson did not accept that Static-99 was wider in scope than ASRS. In any event, it seems to me that the point made by the Court of Appeal in McDonnell here
is of wider application; actuarial instruments cannot in general require the facts upon which they are based to be proved to a criminal standard and the mere fact that criminal charges of a similar kind have been laid can be statistically significant. Accordingly I do not consider that the admitted reliance placed by Ms Isaacson on the existence and detail of unproved charges against Mr M , particularly when taken in the context of the other matters considered by her, was either inappropriate or irrelevant.
[39] As regards the age of the proved offending and the apparent absence of subsequent reoffending, Ms Isaacson’s position was that she “would have to put a question mark over any offence free period” although she fairly accepted that her ability to comprehensively evaluate the ongoing risk of Mr M offending sexually against children was hampered, in the context of limited and unverified information as to his activities over the past five years. That said, however, Mr M ’s history of failing to comply with court orders, his assumption of false identities and the giving of false information both to the probation service and to Ms Isaacson was regarded by Ms Isaacson as specifically relevant to the STABLE 2007 analysis.
[40] Similarly, and while I must necessarily accept that there is no evidence that
Mr M has indeed offended since 2005, it seems to me that the very fact that there
is an absence of information, and more particularly the reason for that absence, must
be relevant to the assessments required by s 107I(2) and (5). At the very least, it cannot be correct that Mr M can rely on the fact of his deliberate disappearance and subsequent evasion of the authorities as somehow militating against the risk of his reoffending. The need for supervision is, if anything, underscored by those matters.
Conclusions
[41] As I have already noted, Mr M does not oppose the making of an ESO. As indicated earlier in my judgment, however, I have nonetheless made my own assessment of that issue and record that I am satisfied, based on the evidence before me, that Mr M remains likely to commit one or more of the offences referred to in section 107B(2). More specifically, and in terms of the factors listed in s 107F(2), Ms Isaacson’s evidence (by which I mean the whole of her evidence as well as her specific assessment of the s 107F(2) factors at paragraphs 30 – 34 of her report) forms a sound basis for the conclusions that:
[42] Accordingly I am satisfied, in terms of s 107I(2), that the evidence establishes that Mr M is likely to commit one or more of the relevant offences referred to in section 107B(2) and that an ESO should be made.
[43] In terms of the duration of that order, I must impose the minimum period required for the purposes of the safety of the community in light of:
a) The level of risk posed by Mr M ;
b) The seriousness of the harm that might be caused to victims; and
c) The likely duration of the risk.
[44] As regards both the level and duration of risk, it seems to me that Ms Isaacson’s assessment places Mr M on a par with, or possibly as posing a higher risk, than Mr McDonnell (the eponymous subject of the Court of Appeal’s 2009 decision referred to above). In particular I note that:
a) Mr McDonnell’s score based on an ASRS assessment indicated an
11 per cent risk of him sexually reoffending over a ten year period whereas Mr M ’s ASRS score indicated a 16 per cent risk over a similar period;
b) The results of Mr McDonnell’s STABLE 2000 assessment was that he
Mr McDonnell was assessed as of high risk which equates to an
18.7 per cent risk of sexual recidivism over a three year follow up period, whereas the results of Mr M ’s STABLE 2007 assessment was that the risk of his reoffending after 4 years was put at 22 per cent;
c) The respective PCL:SV assessments placed both Mr M and
Mr McDonnell within a group of offenders with a 65 per cent chance
of reimprisonment within five years;
[45] As well, I accept Ms Longdill’s submissions that, unlike Mr McDonnell and
a number of other offenders who have been made the subjects of ESOs, Mr M is,
at 38, a comparatively young man. There are thus no grounds for assuming the risks
he poses will decrease in the medium term simply by virtue of aging process. And I also note Ms Isaacson’s evidence (to which I have referred above) that certain of the risks identified in relation to Mr M continue over an extended period and others in fact increase, rather than decrease, over time.
[46] Against those considerations it seems to me that I must weigh the fact that there is no evidence that Mr M has offended during the last five years. In the particular circumstances of this case, however, there is an important distinction to be drawn between the (accepted) fact that there is an absence of evidence and the (not accepted) conclusion that there has therefore been no offending. The weight I give to that matter must therefore be diminished by that important qualification.
[47] As to the seriousness of the harm that might be caused to any future victims, I acknowledge that Mr M ’s relevant convictions relate to somewhat lesser charges than those in respect of which Mr McDonnell (for example) had been convicted. That said, I have also already noted that Ms Isaacson has said that although previous offending and allegations of offending have involved teenagers (under 16) there is a risk that any such offending would not be limited to that age bracket and also that there is some evidence to suggest that the nature of any such offending may escalate over time.
[48] In relation to the duration issue, it is difficult meaningfully to differentiate Mr M ’s position from that of Mr McDonnell, in respect of whom the Court of Appeal concluded at [112]:
Each of the three statutory factors indicate cause for concern about the risk posed by the appellant. The minimum term appropriate for the purposes of the safety of the community depends on the appellant’s behaviour over the short to medium term. The appellant is a sexually deviant psychopath, who has been assessed by a number of statistical tools and clinicians as falling within a medium to high risk group of sexual offenders. Any reoffending is likely to be of a serious sexual nature and risks causing significant harm to vulnerable individuals. No evidence to the contrary has been called. Moreover, the appellant has consistently denied his offending, has not participated in any form of treatment and has been generally uncooperative with efforts to manage his risk. There is a complete absence of any evidence to suggest that these factors are likely to change.
[49] In Mr McDonnell’s case the High Court had imposed an ESO of nine years duration on the basis that a one year reduction from the maximum term was justified
on account of Mr McDonnell’s age and the fact that the application had taken a year
to process (McDonnell at [86]). This was upheld by the Court of Appeal.
[50] I have already expressed my agreement with Ms Longdill’s submission about Mr M ’s age, namely that it does not warrant any reduction. And while the present application may have taken five years to process that is a fact that is solely attributable to Mr M .
[51] Accordingly, and after balancing all the matters I have outlined above, I
consider that 10 years is the minimum period required for the purposes of the safety
of the community.
[52] There will be an Extended Supervision Order against Mr M for a term of ten years commencing from today’s date.
Postscript
[53] After this judgment had been completed but prior to its release I received a joint memorandum from counsel for the applicant and for Mr M . The memorandum relevantly stated as follows:
...
3. Following the commencement of the order, the standard conditions apply immediately: s107JA Parole Act 2002. There is then a period of up to 3 months before the Parole Board meets to set special conditions for Mr M (pursuant to s107K Parole Act 2002). By way of explanation, the process is for the Probation Officer and Psychologist to prepare reports for the Parole Board after the order is made, outlining any recommended special conditions. The Board then schedules a hearing, at which the special conditions are set.
4. In the intervening period, before the Board meets to set special conditions, there is power for the Court to pose interim special conditions: s1071A Parole Act 2002.
5. The Applicant seeks the following interim special conditions:
(a) the offender must reside at an address approved by a probation officer and must not stay away overnight from the address without the prior written approval of the probation officer;
(b) the offender must not undertake employment/training without the prior written approval of the probation officer.
6. These conditions are designed to mitigate Mr M ’s risk of re-offending
in the period before the Parole Board is in a position to assess the situation.
7. The Respondent agrees to the imposition of the Interim special conditions set out in paragraph 5(a) and (b) above.
[54] I order those interim special conditions accordingly.
Rebecca Ellis J
[1] McDonnell v
Chief Executive of the Department of Corrections [2009] NZCA 352; (2009) 8
HRNZ
770
[2]
R v Leitch [1998] 1 NZLR 420 (CA) at
428.
[3]
Belcher v Chief Executive of the Department of Corrections [2007] 1
NZLR 507 (“Belcher No 1”).
[4] R v Peta
[2007] 2 NZLR
627.
[5] Chief
Executive of the Department of Corrections v McIntosh HC Christchurch
CRI 2004-409-162, 8 December
2004
[6]
Chief Executive of the Department of Corrections v Peterson HC Auckland
CRI 2007-404-0398, 24 April 2008.
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