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

Chief Executive of the Department of Corrections v Wilson [2012] NZHC 1634 (13 July 2012)

Last Updated: 16 August 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-26 [2012] NZHC 1634

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Applicant

v

STEWART MURRAY WILSON

Respondent

Hearing: 5 July 2012

Counsel: C Butchard for Applicant

A McKenzie for Respondent

Judgment: 13 July 2012

Reasons: 13 July 2012

REASONS FOR JUDGMENT OF LANG J [on application for extended supervision order]

This judgment was delivered by me on 13 July 2012 at 12.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS V STEWART MURRAY WILSON HC CHCH CRI-2012-409-26 [13 July 2012]

[1] In 1995, a jury found Mr Wilson guilty on seven charges of rape, one charge of attempted rape, two charges of wilful ill-treatment of children, one charge of bestiality, one charge of attempting to stupefy and two counts of stupefying, three counts of assault on a female and six counts of indecent assault. Many of the charges were laid on a representative basis.

[2] Heron J sentenced Mr Wilson on 15 March 1996.1 The Judge said that, had he the power to do so, he would have imposed a sentence of preventive detention. Mr Wilson’s offending had occurred, however, at a time when preventive detention was not available in respect of those charges. For that reason the Judge was obliged to impose a finite term of imprisonment.

[3] Heron J sentenced Mr Wilson to an effective term of 21 years imprisonment. He did so by means of a series of cumulative and concurrent sentences. That end sentence remains one of the longest ever imposed in New Zealand for offending of this type.

[4] Mr Wilson has remained in custody since 1996 notwithstanding the fact that he became eligible for parole some time ago. The Parole Board considers he presents as a high risk of re-offending once he is released. For that reason the Board has exercised its power under s 107(3) of the Parole Act 2002 (“the Act”) not to release him prior to his statutory release date. His statutory release date, however, is

1 September 2012. The law requires the prison and parole authorities to release him on that date.

[5] After Mr Wilson is released he will be subject to strict release conditions imposed by the Parole Board. These will remain in effect until 1 September 2015. Thereafter, ordinarily, Mr Wilson would be free of any further restrictions and supervision by the Parole Board.

[6] The Chief Executive of the Department of Corrections (“the Chief Executive”) considers Mr Wilson is likely to commit further offences of a sexual nature against young females after his release conditions expire. For that reason he

has applied under s 107F of the Act for an extended supervision order to be imposed on Mr Wilson. Any such order would take effect upon the expiry of his release conditions on 1 September 2015, and would require him to remain subject to oversight by the Parole Board for up to ten years from that date.

[7] Mr Wilson opposes any order being made. He contends there is insufficient evidence to justify the conclusion that he is likely to re-offend against young females upon his release. Mr Wilson also argues that it is premature in any event for the Court to make an extended supervision order at this point. He submits that the Court should defer making any order for at least two years so that it can monitor the manner in which he complies with the release conditions that the Parole Board has imposed.

Jurisdiction

[8] The aim of the legislation is aptly summarised in s 107I(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.

[9] The regime has already been the result of detailed discussion in several cases in both this Court and the Court of Appeal.2

[10] These confirm, as is in any event evident from the wording of the legislation, that the purpose of the jurisdiction is protective. Extended supervision orders are designed to protect children and young persons from the risk of future sexual abuse

_{by recidivist offenders.}

2 Chief Executive of Department of Corrections v McIntosh HC Christchurch CRI-2004-409-162, 8

December 2004; Chief Executive of the Department of Corrections v Steven HC Rotorua CRI-2004-

463-130, 27 April 2005; Grieve v Chief Executive of the Department of Corrections (2005) 22 CRNZ

20 (CA); R v Peta [2007] NZCA 28; Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA); McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352.

Is Mr Wilson an eligible offender under the Act?

[11] The Court may make an extended supervision order only in respect of persons who are “eligible offenders” in terms of s 107C of the Act. That section provides as follows:

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.

...

[12] “Relevant offences” are defined in s 107B of the Act. They include3 offences against s 128 of the Crimes Act 1961 (sexual violation by rape) where the victim of the offence was under the age of 16 years at the time of the offence, and offences under s 134 of the Crimes Act 1961 (indecent conduct with a young person under the age of 16 years).

[13] There is no dispute that Mr Wilson qualifies as an eligible offender. He has been sentenced to imprisonment for relevant offences, namely raping a girl who was under 16 years of age and committing an indecent act on a girl under 16 years of age. The sentences imposed in respect of those charges have not been quashed or

otherwise set aside. He was subject to finite sentences when the application was made, and is still serving those sentences.

[14] The fact that Mr Wilson’s offending occurred prior to the new regime coming into force does not matter, because s 107C(2) expressly provides for the Act to have retrospective effect.

Preliminary issues

[15] Before considering the substantive application it is necessary for me to determine two preliminary issues.

Is it premature for the Court to determine the application at this stage?

[16] This issue arises out of the fact that any order that the Court might make will not take effect until Mr Wilson’s release conditions expire on 1 September 2015. Counsel for Mr Wilson submits that it is premature to hear the application when it will not take effect until well into the future. He contends the application should be deferred for at least two years. At that point the Court will be in a much better position to determine whether an order is necessary and, if so, for how long. In particular, counsel points out that the Court would have the advantage in two years time of being able to observe the extent to which Mr Wilson has complied with his release conditions. This may well affect the manner in which the Court determines the application.

[17] This submission has a superficial attraction, because the manner in which Mr Wilson complies with his release conditions might have some bearing on the term for which an order should remain in force. Ultimately, however, the focus at this stage must primarily be upon the issue of whether it is likely that Mr Wilson will commit a relevant offence after his release conditions expire. There is no impediment to that issue being determined at this point. It would serve no practical advantage, in my view, to defer determination of that issue to a later date.

[18] Deferral of final disposition might have been appropriate if the Court was satisfied that an order should be made, but considered it could be assisted in determining the duration of the order by the manner in which Mr Wilson abided by his release conditions. For reasons that will become obvious, however, I do not consider the application needs to be deferred in order for the Court to determine the period for which any extended supervision order should remain in force.

The “Animal Antics” story

[19] The second issue relates to an item said to have been found in Mr Wilson’s cell in 1999 or 2000. The item in question comprises seven typewritten pages, and consists of a story bearing the title “Animal Antics”. The story is about a horse called Blazer, and his sexual interaction with a young girl called Lynne. It is written in extremely lurid terms, and is without doubt the work of a highly deviant mind. Mr Wilson denies ever having seen the story before, and during the hearing before me he said he found it “disgusting”.

[20] The Court may receive and take into account any evidence or information it thinks fit, whether or not it would be admissible in a court of law.4 Nevertheless, the issue of whether or not Mr Wilson wrote or was in possession of the story becomes important when considering the weight to be attached to it. It is therefore necessary for me to determine that issue.

[21] Dr Freeman-Brown located the story, which consists of seven typewritten pages, in a prison psychological file relating to Mr Wilson that was only retrieved from an office in the red zone in Christchurch in March 2012. For that reason Dr Freeman-Brown did not have access to it when she prepared her original report two months earlier.

[22] During the hearing I heard evidence from Mr David McKnight, who is currently the Prison Manager of Christchurch Women’s Prison. In 1999 and 2000 he was the Unit Manager of the wing at Christchurch Men’s Prison in which Mr Wilson was held. He said that during this period a member of prison staff who had been

engaged in routine cell searches brought the story to him. The staff member told Mr McKnight he had found the story in Mr Wilson’s cell, and was concerned about its contents. Mr McKnight shared the staff member’s concerns after he read the story himself. Mr McKnight is unable to recall, however, exactly when this incident occurred. He is also unable to remember the name of the staff member who brought the story to his attention.

[23] Mr McKnight said that he gave the story to the Principal Psychologist, because he thought it might be relevant in the future. He assumes that is how the story ended up on Mr Wilson’s psychological file.

[24] The Chief Executive contended Mr Wilson was either the author of the story or he had it in his possession. Either way, counsel for the Chief Executive submitted that it demonstrated that Mr Wilson continued to maintain an unhealthy interest in sexual matters pertaining to young females whilst in prison.

[25] Dr Freeman-Brown, the senior clinical psychologist called to give evidence on behalf of the Chief Executive, also relied to some extent on the story in reaching her conclusion that Mr Wilson is likely to sexually re-offend against young females following his release from prison. She did not, however, rely upon it when providing her original report, which was to the same effect.

[26] Following the hearing, counsel for Mr Wilson sought leave to file an affidavit by a person who was a prisoner in the same wing as Mr Wilson at the time the story came to the attention of the prison authorities. Having received that affidavit on the morning of 12 July 2012, I held a telephone conference with counsel. After discussing the issue with counsel, I granted leave for the affidavit to be filed.

[27] The matters raised in the affidavit cast doubt on the Chief Executive’s submission that Mr Wilson is likely to be the author of the story, or that he was aware of it when it came into Mr McKnight’s possession. I am conscious, however, that the Chief Executive has not had an opportunity to challenge the issues raised in the affidavit, or to adduce evidence in response to it. I am equally conscious that further enquiries into the origin of the story could significantly delay delivery of this

judgment. It might also be necessary to reconvene the hearing for the purposes of cross-examination and further submissions.

[28] I am not prepared to allow determination of the Chief Executive’s application to be delayed any further. Instead, because I accept that authorship of the story has not been established and because it is not determinative of the outcome of the application, I propose to put it to one side. It will not form part of my reasoning when considering the issue of whether or not the Chief Executive has established the necessary grounds to justify the Court making an extended supervision order. For the same reason I also direct that the story and the affidavit are to be sealed, and may only be inspected with the leave of a Judge.

Is Mr Wilson likely to commit a relevant offence when his release conditions expire?

[29] The jurisdiction to make an order is contained in s 107I(2) of the Act, which provides as follows:

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.

[30] Mr Wilson will cease to be an eligible offender on 1 September 2015 when his release conditions expire. For the purpose of s 107I(2), the Court needs to be “satisfied” that he is likely to commit any of the offences referred to in s 107B(2) of the Act at that point. This calls for an exercise of judgment by the Court, and means no more than that the Court must “make up its mind” that Mr Wilson is likely to commit any of the offences referred to in s 107B(2) when his release conditions

_expire.5 _{The jurisdiction “depends upon the risk of relevant offending being both}

5 R v Leitch [1998] 1 NZLR 420 at 428 (CA); Chief Executive of Department of Corrections v McIntosh, n 2 at [21]; Chief Executive of Department of Corrections v Steven, n 2 at [12]; Chief Executive of Department of Corrections v Subritzky HC Auckland CRI-2004-404-98, 26 October 2005 at [15]; and Strickland v Police HC Wellington CRI-2009-485-56, 19 May 2009 at [8].

real and ongoing and one that cannot sensibly be ignored having regard to the nature and gravity of the likely re-offending.”6

History of previous offending

[31] In determining whether or not Mr Wilson is likely to commit relevant offences in the future, the Court is entitled to take into account his past conduct. As this Court noted in McIntosh, one of the best indicators of what the future is likely to hold may be what has occurred in the past.7

[32] Prior to the charges for which Mr Wilson was sentenced on 15 March 1996, he had previous convictions for assault on females, burglary, living off the earnings of a prostitute and assault on a child. No convictions were entered between 1981 and 1994, but during that 13 year period most of the offending for which Mr Wilson was sentenced on 15 March 1996 was occurring but remained undetected.

[33] The charges in respect of which Mr Wilson was sentenced on 15 March 1996 related to 21 separate victims. The sentencing remarks of Heron J describe the offending in the following terms:8

These crimes were committed on women and girls over a period of some 25 years and had a number of common features. Women and girls often their daughters, would be taken into your home on the pretext of friendship. Before long your true intentions would become plain and they would be subjected to assaults, indecencies and often raped. They were in most instances cowed by the violence you dealt them. In many cases I find they were often drugged by you through the widespread excessive use of sedatives or sleeping pills. The more gross examples are reflected in the convictions on the stupefaction charges, but I am sure that the use of drugs was more widespread than that. Compliance with your wishes would be obtained by force or threats of force. A punch in the face seems to have been your stock in trade but often more subtle pressures were used. This long period of time saw a number of women come into your home and sometimes you went into their homes. You had the ability to detect women who were vulnerable, often recovering alcoholics and those who were seeking security and friendship and company often after having separated or generally when at a low period in their lives. This included answering advertisements from women seeking company and you made it your business to win their confidence so you could commence relationships with them. Once you had

6 _{Belcher v Chief Executive of Department of Corrections, n 2 at 512.}

7 Chief Executive of Department of Corrections v McIntosh, n 2 at [31].

established such a relationship the treatment you handed out to these women and their children, was viciously cruel and degrading. You regularly stupefied them as I have said, and you took control of their lives to an extraordinary degree. This involved in some cases, accompanying them to their own doctor and taking control of their treatment and medication recommended for them. You dictated the clothing they should wear and in some cases damaged their teeth, all designed to destroy what little dignity they had.

You knew quite a deal about hypnotic drugs and finally when you were arrested a remarkable array of medication, including the hypnotic chloral hydrate was found in your home.

[34] The Judge also noted that Mr Wilson’s upbringing was marked by living for a long period of time during his teenage years in psychiatric institutions.9 Apart from personality disorders, however, no other relevant diagnosis was made. His childhood years were apparently affected by his parents’ alcoholism, and to a great extent he had a deprived background and little educational opportunity. To his credit, Mr Wilson appeared to have recovered from his own addiction to alcohol and took part in regular meetings convened by Alcoholics Anonymous. The Judge observed, however, that Mr Wilson used even that association to make contact with vulnerable women.10 The Judge also noted that Mr Wilson’s offending was

“unexplained and probably inexplicable”.11 The reports before him indicated that, if

released into the community, Mr Wilson would be likely to offend again. For that reason the Judge considered the protection of the public obviously required a long sentence of imprisonment.

[35] Importantly for present purposes, Mr Wilson has only committed three relevant offences in the past. The first of these was, however, particularly serious. It occurred in 1984, and involved the rape of the daughter of his then wife.12 Mr Wilson committed the offence in front of his wife, and the Judge referred to it as follows:13

Mention must be made of the rape in front of her mother of [R]. I suspect in this incident that once again [L] who was present, and [R’s] mother, were affected by drugs. The events were so grossly cruel that legal proceedings were immediately taken and non-molestation orders followed. The girl was

9 _{Ibid at 5.}

10 _Idem.

11 _Idem.

12 Rape is a relevant offence by virtue of s 107B(2)(a) of the Act.

put under the care of another family. You then pursued this girl despite the fact that she was only 13 or 14. You kept her photograph and you pestered the persons looking after her. I detected in this courtroom in the uninterrupted silence that accompanied her evidence that the jury were having difficulty in accepting that a mature man of 35 in an angry mood would rape a young girl in the presence of her mother to demonstrate who was in control of that house.

[36] The remaining relevant offences were committed in 1985 and 1992, and involved the indecent assault of a girl under the age of 16 years. The details of this offending are sketchy, although it seems that one charge involved touching a girl’s breast.

Health assessor’s report

[37] Section 107F(2) of the Act requires any application for an extended supervision order to be accompanied by a report by a health assessor that addresses 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.

[38] The Chief Executive has annexed to his application a detailed report by Dr

Jane Freeman-Brown. She is a health assessor in terms of s 4 of the Sentencing Act

2002.

[39] Dr Freeman-Brown prepared her report without input from Mr Wilson, because he declined to be interviewed in relation to it. As a result, Dr Freeman was

required to prepare her assessment based on the information held on Mr Wilson’s

file.

[40] Dr Freeman-Brown’s report summarises the pattern of Mr Wilson’s prior offences. He has a lengthy criminal record dating back to 1962. The sexual offending contained many common features. These include targeting vulnerable women, who often had daughters, and taking them into his home on the pretext of friendship. He would then stupefy and rape them, and take control of their lives. This involved manipulation of many aspects of their lives, and he would subject them to other cruel forms of treatment.

[41] Dr Freeman-Brown notes that Mr Wilson’s prison records show that he has displayed a pattern of ongoing sexually inappropriate behaviour towards female staff members. This includes masturbating in front of them, making sexually inappropriate comments and using intimidatory tactics.

[42] Dr Freeman-Brown observes that Mr Wilson has consistently denied responsibility for his lengthy history of sexual offending, and he continually asserts his innocence. He has not engaged in any form of intervention designed to address the causes of his offending and to manage his risks. She notes that if Mr Wilson were to engage in intervention in the future it is likely that, without supportive external management, his attitudes and behaviours would be significant barriers to genuine change.

[43] In assessing Mr Wilson’s potential to reoffend, Dr Freeman-Brown considered both clinical risk factors and actuarial instruments. This required her to consider both static and dynamic risk factors for sexual recidivism. She considered the use of such a multi-method assessment strategy to be the most appropriate approach to determine risk factors.

[44] Dr Freeman-Brown assessed Mr Wilson as being in the high risk category using the Automated Sexual Recidivism Scale (“ASRS”). This instrument relies upon seven risk factors or variables that are static in the sense that they cannot be changed through intervention. Those in this category belong to a group of offenders

known to have a recidivism rate of 43 per cent after ten years following their release from prison for sexual reoffending generally, and of 36 per cent for sexual offending against children.

[45] The STABLE-2007 is a specialised tool designed to assess and track changes in status over time by assessing changeable “dynamic” risk factors. Mr Wilson was found to be in the high risk category using this tool. He scored particularly highly in relation to sexual deviancy and sexual preoccupation.

[46] Dr Freeman-Brown also noted that another psychologist had used a tool known as the Psychopathy Checklist Screening Version (PCL:SV) when preparing a recent report for the Parole Board. This tool is designed to assess the level of any psychopathy traits Mr Wilson might be found to possess. Mr Wilson’s score using this measure indicated a high level of psychopathic traits, and Dr Freeman-Brown agreed with this assessment.

[47] Dr Freeman-Brown accepted that the offenders who were studied for the purpose of creating this tool were aged between 18 and 44 years. They are therefore considerably younger than Mr Wilson. Notwithstanding this point of difference, Dr Freeman-Brown considered Mr Wilson’s PCL:SV score to be particularly relevant to her assessment of the risk of sexual recidivism. She said that offenders who display a combination of both sexual deviancy and traits of psychopathy represent a very small but very high risk group in relation to future sexual offending. Members of this group are motivated to gratify their sexual deviancy, and they also have an extremely low level of concern for their victims. For that reason they tend to take advantage of opportunities to re-offend.

[48] Dr Freeman-Brown also took into account five other factors when assessing the level of risk that Mr Wilson presents of re-offending against young females in the future. These were the extended length of time he was engaged in offending whilst in the community (23 years), indications that Mr Wilson was vulnerable to alcohol abuse and was thereby unlikely to be able to regulate his conduct in a satisfactory manner, the existence of attitudes and beliefs supportive of sexual re-offending throughout the time Mr Wilson was in the community, evidence that he had

extremely limited perspective of the effects of his offending on his victims and a history of very low motivation to engage in offence-related treatment throughout his time in prison.

[49] Mr Wilson’s history led Dr Freeman-Brown to conclude that he is an indiscriminate sexual offender who offended in a very deviant manner against victims having a very broad range of ages. She considers he is at very high risk of offending in the future, and that this is likely to be directed towards victims who are vulnerable. Young girls fall within the group of potential victims who can properly be said to be vulnerable.

[50] Dr Freeman-Brown also observed that Mr Wilson has consistently denied responsibility for his sexual offending, and appears to have no remorse and little capacity for empathy with his victims. He has also refused to have any involvement in planning for his release. This gives further cause for concern regarding the risk of recidivism.

[51] Dr Freeman-Brown could not identify any factors that may mitigate Mr Wilson’s presence of risk factors. Despite being 65 years old, Mr Wilson has continued to demonstrate deviant sexual behaviour in prison and his sexual offending in the past does not appear to have been precipitated by impulsivity. International research suggests that offenders who persist in sexual offending later in life have enduring deviant arousal and psychopathic characteristics, which are features assessed as present in Mr Wilson.

[52] Overall, Dr Freeman-Brown considered there is a very high risk that Mr Wilson will commit a further relevant sexual offence once he is back in the community.

Decision

[53] The issue of whether or not Mr Wilson is likely to commit a relevant offence once his release conditions expire is, as I have already indicated, ultimately a matter of judicial assessment. I have derived considerable assistance, however, from the

material provided by Dr Freeman-Brown, and also by the issues that counsel for Mr Wilson explored with her during extensive cross-examination. I have also been assisted greatly by the evidence of Mr Prince, the senior clinical psychologist who gave evidence on behalf of Mr Wilson.

[54] Both psychologists agree that Mr Wilson presents as a very high risk of committing further sexual offences once he is released. That is not sufficient, however, to permit the Court to make an extended supervision order. Instead, the Court must be satisfied that Mr Wilson is also likely to offend again against young female victims once his release conditions expire in September 2015.

[55] The strongest point for Mr Wilson in this context is that he has not committed nearly as many sexual offences against young females as he has committed against adult females. This leads counsel for Mr Wilson to submit that the Court cannot conclude it is likely that he will commit such offences against young females in the future.

[56] The evidence of Dr Freeman-Brown is instructive in this context. She is anxious to avoid categorising the assessment of future risk as a “numbers game”. She suggests it is illogical to say that, merely because an offender has committed less sexual offences against young females than he has committed against adult females, it is unlikely that he will commit offences against young females in the future.

[57] Dr Freeman-Brown said that the only subgroup of offenders who offend sexually against a particular sector of society is that comprising male offenders who offend exclusively against boys under the age of 12 years. Mr Wilson does not fall within that subgroup. Instead, he is part of a subgroup of offenders who are prepared to offend against both adult and young females. In that sense Mr Wilson is indiscriminate in his offending, and she says both categories of victim will be at risk from him in the future.

[58] Dr Freeman-Brown also observes that the characteristic shared by Mr Wilson’s victims is that they tend to be vulnerable. Given that young females are often vulnerable by virtue of their emotional immaturity, she believes they fall within

the pool from which Mr Wilson is likely to choose his victims in the future. That will increasingly be the case, she suggests, as Mr Wilson grows older and loses physical strength. Dr Freeman-Brown considers Mr Wilson will remain a high risk to all females regardless of their age until such time as he is physically unable to offend against them.

[59] I agree with Dr Freeman-Brown’s overall assessment of the risk that Mr Wilson presents. The fact that he has not offended extensively against young females in the past is not determinative for present purposes. He has been prepared to offend against victims falling within that group, and on one of those occasions the offending was extremely serious. I do not see it as being incidental in some way to his other offending.14 Rather, it is offending in its own right.

[60] I, too, conclude that Mr Wilson is likely to commit another relevant offence against females under the age of 16 years when his release conditions expire in 2015.

The likely impact of age on future offending

[61] Mr Prince agreed with Dr Freeman-Brown’s assessment of Mr Wilson’s current level of risk. He concurred that, as matters presently stand, Mr Wilson must be regarded as presenting a high risk of committing a further relevant offence in the future.

[62] The thrust of Mr Prince’s evidence was directed to the fact that Mr Wilson is now in his mid-sixties. He points to research showing that, as male sex offenders grow older, they tend to offend less. This suggests that even offenders who have significant psychopathic traits experience a dramatic decline in sexual and violent offending after they attain 44 years of age. In Mr Prince’s words, even high risk psychopaths “burn out”, and feel the effects of aging. Mr Prince considers the Court needs to factor this likelihood into its assessment of Mr Wilson’s future risk of

_reoffending.

14 As was found to be the case in Chief Executive of Department of Corrections v J HC Wellington

CRI 2009-485-100, 9 November 2009.

[63] Mr Prince also referred to a New Zealand study involving 5880 sex offenders. This revealed that, out of 562 offenders who were aged over 60 years at the date of their release from prison, only 19 (or three per cent) subsequently reoffended.

[64] Dr Freeman-Brown accepts the validity of Mr Prince’s views at a general level. She considers, however, that they are countered in the present case by factors specific to Mr Wilson. Dr Freeman-Brown considers that Mr Wilson’s psychopathic traits, coupled with his tendency to act in a sexually deviant way, mean that his level of risk is unlikely to decrease as he grows older unless he engages in very intensive psychological intervention. She also views as significant the fact that Mr Wilson committed his last offence at the age of 46 years. Of itself that is unusual, and appears to contradict the trend shown by the statistics.

[65] Dr Freeman-Brown emphasises that the actuarial tools and instruments form but part of the overall assessment that she carried out. She is of the view that Mr Wilson’s characteristics place him within a comparatively rare category of offender, and that it is important to focus on the factors specific to his case rather than on statistics drawn from other cases.

[66] She points to a New Zealand study that focussed on male offenders with high levels of psychopathy. This revealed that the aging process changed the type of offending in which such persons engaged. It did not, however, decrease the level of offending in which they engaged. By way of example, offenders who had used violence to accomplish their objectives when they were younger tended to use less violence as the aging process reduced their physical strength. This did not mean, however, that they ceased to offend. Instead, they resorted to offending in a manner that did not rely upon their ability to overcome resistance using physical force.

[67] Dr Freeman-Brown notes that Mr Wilson has never relied primarily upon brute strength to force his victims to do his will. Rather, he has relied upon his power to manipulate them into complying with his wishes. She does not see his ability to offend in this way being diminished significantly as he grows older. I agree with that assessment.

Inappropriate sexual behaviour whilst in prison

[68] Dr Freeman-Brown considers that the inappropriate sexual behaviour in which Mr Wilson has engaged whilst in prison confirms that he still has sexually deviant tendencies. I agree with that assessment as far as it goes, although I accept that care needs to be taken in this context. Deliberate masturbation in front of a female staff member would obviously be an example of inappropriate sexual behaviour. As Mr Prince noted, however, masturbation by prisoners does not of itself amount to deviant behaviour. For that reason the discovery by chance of Mr Wilson engaging in masturbation would not necessarily be an example of deviant behaviour even if the discovery was made by a female prison officer.

[69] I accept that other examples cited by Dr Freeman-Brown, including making sexually inappropriate comments to female prison officers, might be examples of inappropriate sexual behaviour whilst in prison.

Lack of therapeutic intervention

[70] This leads to another issue that looms large in the assessment of risk. This flows from the fact that Mr Wilson has never acknowledged any of his offending. Indeed, during the hearing before me he re-stated his innocence on the charge of raping his then wife’s daughter in 1984.

[71] Both Dr Freeman-Brown and Mr Prince agreed that, of itself, denial of previous sexual offending is not a risk factor. It may be relevant, however, in assessing whether an offender can realistically address the issues underlying that offending. If an offender is unable to address those issues, the risk of future offending is obviously increased.

[72] Mr Wilson has never acknowledged any of his offending, and still maintains his innocence. He has refused all offers of therapeutic intervention during his many years in prison. As a consequence, none of the issues underlying his offending have been examined or addressed. It follows that he remains, in my view, at the same level of risk as he presented at the time of his arrest.

[73] Mr Wilson has also declined to engage with prison psychologists in developing a safety plan for implementation after his release from prison. This is not an intensive programme, and is certainly not intended as a substitute for a full therapeutic programme designed to treat the underlying causes of previous offending. Instead, it is designed to prepare offenders for release by assisting them to recognise and avoid situations involving risk that might lead to further offending. Dr Freeman-Brown said that this form of assistance is available even to offenders who are not prepared to acknowledge any wrongdoing, so Mr Wilson could have accepted it without compromising his views regarding his innocence. The fact that Mr Wilson refused to accept this form of assistance means that he is completely unprepared to deal with situations of risk that he is likely to encounter following his release from prison.

[74] During the hearing, counsel for Mr Wilson cross-examined Dr Freeman- Brown about the level of psychological intervention that might be available to Mr Wilson in the community following his release from prison on 1 September this year. Her evidence was to the effect that such intervention as may be available would not be of sufficient intensity to provide any meaningful comfort in the near future. She considered that, if he was serious about seeking psychological assistance, Mr Wilson ought to have taken advantage of the opportunities offered to him whilst he was in prison.

[75] Consideration of this issue is, in my view, academic. Mr Wilson has shown no interest in obtaining psychological intervention during the 16 years he has spent in prison. There is nothing to suggest his attitude will change once he is released from prison. Acknowledgment of at least some wrongdoing is also a prerequisite to virtually all forms of psychological intervention. Mr Wilson has never acknowledged any wrongdoing at all. For that reason it is unlikely that he would be eligible to receive intervention even if he expressed an interest in obtaining it. There is no point in taking into account a factor that has no practical relevance.

Likely gravity of future offending

[76] In assessing the gravity of the risk posed by future offending, the nature of Mr Wilson’s previous offending provides obvious assistance. There are many disturbing features about Mr Wilson’s past offending. The first is the fact that he offended against so many girls and women and over such a very lengthy period of time. The nature of the offending is also of great concern. It showed a callous disregard for his victims, and also displayed a disturbing degree of manipulation and willingness to resort to extreme measures, including stupefaction, to bring about the submission of his victims.

[77] It follows that, if Mr Wilson reoffends in the future, he is likely to do so in a manner that causes severe harm to female members of the community.

Conclusion

[78] All of the factors to which I have referred clearly favour the making of an extended supervision order. I share Dr Freeman-Brown’s assessment that Mr Wilson’s previous offending demonstrates that he has ingrained psychopathic traits and a continued tendency to act in a sexually deviant manner. In the past this has included serious offending against females of varying ages, including young girls. The likelihood that he will reoffend in a similar way in the future is very high unless he accepts treatment for his underlying problems. These are clearly deep-seated, and would require intensive and lengthy therapeutic intervention to resolve. As matters stand, however, Mr Wilson refuses to acknowledge any wrongdoing and also refuses to accept any treatment. There is little prospect that such intervention will ever occur.

[79] For those reasons I agree that he presents as a rare and special case, and that many of the tools that are usually of assistance in predicting future offending are of lesser assistance in this case. He will remain at risk of offending against young females well beyond the expiry of his release conditions.

[80] An extended supervision order is therefore necessary, in my view, to achieve the statutory objective of protecting such persons from the risk of further offending in the future by Mr Wilson.

How long should the order remain in force?

[81] Section 107I(4) of the Act provides that every extended supervision order must state the term of the order, and that the term of the order may not exceed ten years.

[82] Dr Freeman-Brown acknowledges that research shows that even offenders possessing Mr Wilson’s characteristics generally cease to offend once ten years has elapsed after their release from prison. For that reason she accepts a case can be made for the order to remain in place for seven years from 1 September 2015. This means that Mr Wilson would be subject to strict oversight and supervision by the Parole Board for a period of ten years following his release from prison.

[83] She considers, however, that Mr Wilson will remain at high risk of reoffending for the rest of his life, or until physical infirmity prevents him from offending further. For that reason she recommends that any order should remain in place for the maximum period possible.

[84] Given that the purpose of the legislation is to ensure that young persons are protected from sexual offenders so far as is possible, I consider a cautious approach is required. In Belcher, the Court of Appeal observed that extended supervision orders are not to be made for the minimum period required to facilitate treatment of the offender. Rather, s 107I(5) of the Act requires the order to remain in place for the minimum period required to protect the safety of the young people in the community

having regard to the level and duration of the risk that the offender poses.15

[85] I agree with Dr Freeman-Brown’s assessment of the length of time for which

Mr Wilson is likely to be at risk of reoffending against young persons. This persuades me that the term of the order should be the maximum available, namely

15 Belcher v Chief Executive of the Department of Corrections, n 2 at [108].

ten years. I note that it is open to both Mr Wilson and the Chief Executive to apply under s 107M of the Act for cancellation of the order. The Court could only grant the application, however, if it was satisfied that the offender is no longer likely to commit a relevant offence.

Result

[86] I make an extended supervision order under s 107I(2) of the Parole Act 2002. The term of the order is to be ten years from 1 September 2015.

Lang J

Solicitors:

Crown Solicitor, Christchurch

Counsel:

A McKenzie, Christchurch