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Chief Executive of the Department of Corrections v Webster [2012] NZHC 774 (26 April 2012)

Last Updated: 31 May 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-405 [2012] NZHC 774

BETWEEN THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Applicant

AND GARY CHRISTOPHER WEBSTER Respondent

Hearing: 3 April 2012

Appearances: A R Longdill for applicant

N Leader for respondent

Judgment: 26 April 2012

_{JUDGMENT OF ALLAN J}

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of am on 26 April 2012

Solicitors:

Crown Solicitor Auckland, anna.longdill@meredithconnell.co.nz

_{Public Defence Service, Auckland nick.leader@justice.govt.nz}

DEPARTMENT OF CORRECTIONS V WEBSTER HC AK CRI 2011-404-405 [26 April 2012]

[1] This is an application for an extended supervision order (ESO), made pursuant to s 107F of the Parole Act 2002 (the Act). The purpose of an ESO is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and on-going risk of committing sexual offences against children or young persons.1

[2] Upon the making of an ESO, the person subject to the order will generally be in frequent contact with a probation officer and will be subject to conditions designed to manage known high risk situations. The standard conditions which apply to every ESO are supplemented by the Parole Board after an order is made. The term of any ESO must be the minimum period required for the safety of the community in light of the level of risk posed by the offender, the seriousness of the

harm that might be caused to victims, and the likely duration of the risk.2 But the

term cannot exceed 10 years.3

[3] The applicant has, as is required by the Act, furnished a report from a health assessor, Dr Karla Mattson, dated 14 September 2011.4 Two further reports, dated

20 December 2011 and 1 March 2012 respectively, have also been provided to the Court by Dr G Woodcock, instructed by counsel for the respondent. Each health assessor has qualifications in clinical psychology. They are agreed that, having regard to any likely future sexual offending, the on-going risk of Mr Webster committing any of the relevant offences set out in s 107B(2) of the Act on ceasing to be an eligible offender, is sufficiently high as to justify the making of an ESO.

[4] Dr Mattson is of the view that it is necessary to make a 10 year order. Mr Woodcock considers five years to be sufficient. Mr Leader nevertheless advises the Court that his instructions from Mr Webster are to the effect that his client consents to an ESO for a term of 10 years. I will return to that difference in professional opinion later. In the meantime, I note that, even where the experts are

_{agreed (as here) as to the need for an order, the Court must nevertheless exercise its}

1 _{Parole Act 2002, s 107I(1).}

2 _{Parole Act 2002, s 107I(5).}

3 _{Parole Act 2002, s 107I(4).}

4 Parole Act 2002, s 107F(2).

own judgment. The making of an ESO is a judicial decision and not that of the health assessor(s).5

[5] In Barr v Chief Executive of the Department of Corrections, the Court of

Appeal said:6

[32] We wish to make it clear, however, that first instance Judges need not accept it as necessary, or right, to rubber stamp opinions of health assessors advanced by the Department of Corrections in ESO applications (and we make it clear that the Judge did not do that in this case). What is required is a careful assessment of all the historical and current factors, along with expert opinions of others, bearing in mind that an ESO can have substantial ongoing impact on an offender who has already completed the sentence imposed by the Court for the offending. The risk of re-offending has to be such that cannot properly be ignored when viewed against the gravity of likely re-offending. Naturally, every case requires individual judgement and assessment. Jurisdiction to make the ESO arises only if there is a real and ongoing risk of committing relevant sexual offences.

Jurisdiction

[6] The jurisdiction to make an ESO appears in s 107I of the Act, which 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.

(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.

(3) To avoid doubt, a sentencing court may make an extended supervision order in relation to an offender who was, at the time the application for the order was made, an eligible offender, even if, by the time the order is made, the offender has ceased to be an eligible offender.

(4) Every extended supervision order must state the term of the order, which may not exceed 10 years.

5 _{Grieve v Chief Executive of the Department of Corrections (2005) 22 CRNZ 20 (CA) at [15].}

6 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006.

(5) The term of the order must be the minimum period required for the purposes of the safety of the community in light of—

(a) the level of risk posed by the offender; and

(b) the seriousness of the harm that might be caused to victims;

and

(c) the likely duration of the risk.

(6) If the person to whom an application for an extended supervision order relates is already subject to an extended supervision order, any new order may not be made for a period that, when added to the unexpired portion of the earlier order, exceeds 10 years.

[7] I am satisfied that the Court has jurisdiction to consider the application. Mr Webster was sentenced to imprisonment for relevant offences as defined in s

107B of the Act. All of the index offences committed by him are relevant offences. The application is in the prescribed form under the Act and was made prior to Mr Webster’s sentence expiry date which is 13 May 2012.

[8] The requirement that the Court be “satisfied” is the same as that used for preventive detention. It requires an exercise of judgment and is not related to the burden or standard of proof.7 The Court may make an order if it is satisfied that the offender is “likely” to commit any of the relevant offences referred to in s 107B(2), on ceasing to be an eligible offender. The expression “likely” refers to a risk of relevant offending that is “ ...both real and on-going and one that cannot sensibly be ignored, having regard to the nature and gravity of the likely re-offending”.8

[9] It is necessary that the Court give separate consideration to the appropriate term of an order.9 The Court is not concerned with ensuring that the term is proportionate to the offences that have already been committed, but with managing the risk of future offending. In assessing risk, the Court is also required to take into account the seriousness of the harm that might be caused to victims in the future. The more serious the likely future offences, the more serious the harm will usually

_{be to victims. The likely seriousness of future offences is usually best predicted by}

7 R v Leitch [1998] 1 NZLR 420 at 428 and McDonnell v Chief Executive of the Department of

_{Corrections (2009) HRNZ 770 at [71]-[75].}

8 _{McDonnell at [76].}

9 McDonnell at [96].

reference to past behaviour.10 It is therefore permissible to take into account to some degree the nature of the respondent’s past offending. Having said that, the main focus when setting the term of any ESO must be on the safety of the community, and in particular, that of children and young persons. In light of the factors set out in s 107I(5), orders are not to be made for the minimum period required to facilitate treatment, but rather for the minimum period required to achieve protection of vulnerable members of the community.11

[10] The statutory assessment must be individualised and directed towards fixing the minimum term appropriate for the particular offender.12 In fixing the term to be imposed, it is appropriate for this Court to have regard to ss 107M and 107O of the Act, which provide respectively for an ESO to be cancelled, or varied or discharged by the Parole Board if circumstances change.

[11] In Woodhouse v Chief Executive of the Department of Corrections, the Court of Appeal noted that: 13

...An ESO is an intrusive and restricting order, some may say draconian. A Judge is entitled to take comfort from ss 107M and 107O when making a decade long ESO.

Mr Webster’s offending background

[12] Having pleaded guilty, Mr Webster appeared on 15 March 2007 before Frater J for sentence on four representative counts involving indecencies against a girl under the age of 12 years.14

[13] In her sentencing remarks, Frater J summarised the offending as follows:

[5] The facts, as set out in the summary of facts which you agreed to, are that in 2004 or thereabouts you befriended the mother of your then five year old victim. They lived next door to the home where your own daughter lived with her mother from whom you were separated. You suggested that it would be a good idea if you took the victim along with your daughter when

10_{McDonnell at [106].}

11 Chief Executive of the Department of Corrections v McIntosh HC Christchurch CRI-2004-409-162,

_{8 December 2004 at [27] and McDonnell at [112].}

12 _{Ferguson v R [2011] NZCA 445 at [11].}

13 _{Woodhouse v Chief Executive of the Department of Corrections [2011] NZCA 333 at [33].}

14 R v Webster HC Auckland CRI-2006-090-72, 15 March 2007

you went on various outings, and that was agreed to. At times her younger sister also went with you.

[6] These visits took place twice a month or thereabouts. You took the girls to a variety of places including swimming pools, the circus, the movies and the Auckland Museum. But more generally you went to Chipmunks or Lollipops Educare Playlands, and that is where the offending took place.

[7] In the course of those visits you would take the victim into adult toilets and into a cubicle where you would get her to pull down her trousers and her underpants and sit on the toilet. You would then touch her on and around her vagina or simply look at her vagina and her genital area. The indecent touching took place about 20 times over the period; the other indecencies about eight times.

[8] Although the victim asked you to stop, you declined to do so. Sometimes you told her that you would take her to Rainbows End fun park if she co-operated, but you never did. You left the other two girls playing while the offending went on.

[14] At the time, Frater J was asked to consider imposing a sentence of preventive detention and for that purpose considered reports from three health assessors. She considered the case for preventive detention to be finely balanced, but eventually determined that preventive detention was not the appropriate outcome. Among the factors weighing against preventive detention was Mr Webster’s advice, conveyed through counsel, that he would consent to the imposition of an ESO at the time of his release. Mr Webster was ultimately sentenced to five and a half years imprisonment, with a minimum term of three and a half years.

Earlier offending

[15] These were not Mr Webster’s first sexual offences. During the course of her

sentencing remarks in 2007, Frater J noted that:

[17] Significantly, you also have convictions entered in Australia in 1993 for 13 sexual offences against children aged between five and 14 years – four girls and one boy. There are nine convictions for assault against a person with an indecent act, one for indecent assault of a person under 10 years, two indecent assaults and one assault. Following guilty pleas, you were sentenced to four years imprisonment.

[18] The offending occurred over a three year period. It happened variously in the victims’ homes where you either lived or were visiting or, in one instance, at your girlfriend’s home when she was babysitting the victim. It involved you caressing your female victims’ genital areas with your fingers and touching their breasts. You attempted to place your penis in an

11 year old’s vagina but stopped when she said it hurt. The offending

against the male victim involved fondling his penis.

[19] The offending only came to light after you became a member of the Cook Islands Church of the Latter Day Saints and walked into a Police Station and confessed to it. At the same time you are said to have given the names of a number of other children that you molested although, in the event, charges were only laid in respect of five children.

[20] When you completed your sentence, you were deported from

Australia back to New Zealand.

Expert evidence

[16] Dr Mattson reports that the respondent has had difficulty in developing relationships with adults from an early age, as the result of a distant father figure and an abusive mother. He finds it easier to connect with children. It is said also that he continues to use nudity and sexual behaviour as a mechanism to manage difficult emotions. Mr Webster has completed treatment with a psychologist in the Kia Marama Special Treatment Unit programme. But Dr Mattson is concerned that he has not completely reflected on the internal factors that have precipitated his offending. She says that there is a medium to high risk of the respondent committing further sexual offences while in the community, and he still lacks the requisite insight to control his sexual urges. Disturbingly, he continues to minimise his offending to some degree. Dr Mattson considers that any such offending is likely to be committed against pre-pubescent or pubescent males or females with whom he is relatively newly acquainted.

[17] For his part, Mr Woodcock agrees that the respondent exhibits little insight into his offending, and consequently lacks a degree of empathy for his victims. In discussions, the respondent disclosed a degree of rehearsal and grooming aimed at isolating his victims in order to secure their compliance and silence. Mr Woodcock is concerned that the respondent still lacks a degree of self-control, and so is at risk of further offending which he places at a moderate to high level. He considers that children would be the most likely target of any such future offending.

[18] There is therefore a clear consensus between the experts that an ESO is appropriate in this case. Having carefully considered their reports, I am satisfied that it is proper to make an ESO.

[19] But the experts diverge on the topic of the appropriate term of the ESO. Dr Mattson says:15

Research indicates that the risk of individuals with Mr Webster’s assessed risk level remains stable over an extended period of time, with the risk remaining over a ten year period. Given that since the onset of his offending, the longest period he has abstained from sexual offending is six years and that he has a long term pattern of quickly engaging in his offence process once he has identified a potential victim. For these reasons, it is recommended that if an order is applied, it should be for the maximum length available under the legislation (ten years).

[20] Mr Woodcock, on the other hand, suggests a term of no greater than five years. He says:16

The department has requested a ten year period of extended supervision but nowhere can I find any clinical justification for this request. If the period is not able to be justified clinically it becomes punitive and counterproductive to the rehabilitation process. There is at least a moral and clinical onus on the department to provide justification for the length of the order and to outline to the defendant how their concerns are to be addressed over the period of that order. This is vital if you are going to get the active co- operation of the defendant. Failure to do so merely makes supervision punitive. Its only purpose is semi-custodial. International research into the duration of therapeutic intervention strongly supports the ‘less is more’ therapy. This means that interventions, if protracted, can become counterproductive. If protracted, therapy and rehabilitative intervention can engender frustration, resentment and anger.

[21] Ms Longdill submits that there is no proper explanation for Mr Woodcock’s choice of five, rather than ten years. But it seems to me that it is implicit in the passage set out above that he is concerned that an unduly protracted ESO may result in long-term frustration and resentment, with the result that it ceases to provide an

_{effective mechanism for the protection of vulnerable members of the public.}

15 _{Dr Mattson’s report at [30]}

16 Mr Woodcock’s report of 1 March 2012 at 14

[22] Ms Longdill suggests that Mr Woodcock has incorrectly directed his focus at the rehabilitative needs of the respondent, rather than the principal requirement, which is the protection of the relevant section of the community.

[23] I accept that rehabilitation appears to be part of Mr Woodcock’s concern, but I am not satisfied that he has necessarily ignored the underlying statutory purpose, as Ms Longdill suggests. Initially it was intended that both Dr Mattson and Mr Woodcock would be cross-examined, but in the end this proved to be unnecessary because Mr Webster signified his consent to an ESO for a ten year term.

[24] For two inter-related reasons I regard Mr Webster’s consent to a ten year order as important. First, it suggests that he may have rather more insight into his offending and the impact of it on his victims than seems to have been revealed to date to the experts. Second, his consent suggests a level of maturity and self- awareness that might justify a degree of quiet confidence as to the likelihood of him avoiding any future offending.

[25] Having said that, I am satisfied that it is appropriate to make an ESO in the terms sought by the applicant.

Result

[26] With the consent of the respondent, I make an extended supervision order pursuant to s 107I of the Parole Act 2002. The order is to take effect on 13 May

2012, and is to remain in effect for a period of ten years. The standard conditions are to apply.

C J Allan J