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Chief Executive of the Department of Corrections v Dixon [2017] NZHC 1126 (25 May 2017)

Last Updated: 30 October 2017

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2017-419-9 [2017] NZHC 1126

_{ORAL JUDGMENT OF GORDON J}

Solicitors: Crown Solicitor, Hamilton

Boot Law, Hamilton

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v DIXON [2017] NZHC 1126 [25 May

2017]

Introduction

[1] On 14 February 2017 the Chief Executive applied for an extended supervision order against Mr Dixon pursuant to s 107F of the Parole Act 2002. An interim supervision order was made by Venning J on 12 April 2017.

[2] Mr Dixon appeared before me on 24 May 2017. He was represented by counsel, Mr Boot, who advised that Mr Dixon did not oppose the making of an extended supervision order.

[3] I adjourned the hearing to today to enable me to read the application and supporting documents.

[4] Ms Kelly appears in support of the application and Mr Boot appears again for

Mr Dixon who is also present.

[5] I have read the application and supporting documents as follows: (a) Mr Dixon’s criminal record and traffic conviction history;

(b) The summary of facts for the offending that occurred on 15 January

2009;

(c) The summary of facts for the offending that occurred on 20 February

2009;

(d) The High Court sentencing notes of Wylie J dated 14 August 2009; (e) Mr Dixon’s release licence; and

(f) A health assessor’s report of registered clinical psychologist,

Kirsty Bell Hunter, dated 15 December 2016.

The test

[6] Before a court can make an extended supervision order it must be satisfied of the matters set out in s 107I which relevantly provides as follows:

107I Sentencing court may make extended supervision order

...

(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(2A), that—

(a) the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and

(b) either or both of the following apply:

(i) there is a high risk that the offender will in future commit a relevant sexual offence:

(ii) there is a very high risk that the offender will in future commit a relevant violent offence.

...

[7] I must therefore be satisfied that Mr Dixon:

(a) Has, or has had, a pervasive pattern of serious sexual offending; and

(b) There is a high risk that he will in future commit a relevant sexual offence.

[8] “Satisfied” does not connote a burden or standard of proof. It simply means

_{that the Court makes up its mind.}¹

¹ McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8

HRNZ 770 at [72], [74] and [75], adopting the approach taken in R v Leitch [1998] 1 NZLR 420 (CA) at 428, in relation to sentencing decisions involving preventive detention.

Pervasive pattern of serious sexual offending

[9] The Parole Act does not define serious sexual offending. In Holland v Chief

Executive of the Department of Corrections, the Court of Appeal held:²

We consider that the phrase “serious sexual offending” falls to be interpreted by reference to its ordinary meaning viewed against the purpose of this part of the Parole Act. In ordinary language “serious” means “important, grave; having (potentially) important, esp. undesired, consequences; giving cause for concern; of significant degree or amount, worthy of consideration.”

[10] I am satisfied that Mr Dixon has a pervasive pattern of serious sexual offending. This can be seen from his offending for which he was sentenced on

14 May 2009 and the psychologist’s report which refers to Mr Dixon’s “ongoing undetected pattern of coercive sexual interactions and inappropriate sexual behaviours as an adolescent” and “self-reported multiple instances of rape, primarily against women that he has met through informal social situations.”³

Risk of committing a relevant sexual offence in the future

[11] The risk that Mr Dixon will commit a relevant sexual offence in the future must be assessed by reference to the criteria in s 107IAA. That section relevantly provides:

107IAA Matters court must be satisfied of when assessing risk

(1) A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—

(a) displays an intense drive, desire, or urge to commit a relevant sexual offence; and

(b) has a predilection or proclivity for serious sexual offending;

and

(c) has limited self-regulatory capacity; and

_{(d) displays either or both of the following:}

2. Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [44] (footnotes omitted).

³ Offender Management: In Confidence Health Assessment Report to National Commissioner

Corrections Services dated 15 December 2016 at [12].

(i) a lack of acceptance of responsibility or remorse for past offending:

(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.

...

[12] Although Mr Dixon, by consenting to the order being made, has conceded that the statutory criteria are satisfied, the Court must make its own assessment whether the criteria in s 107IAA(1)(a)-(d) have been met.⁴

[13] I now consider the four mandatory statutory criteria.

Does Mr Dixon display an intense drive, desire or urge to commit a relevant sexual offence?

[14] The report of the health assessor addresses this issue as follows:

34 The offender’s display of an intense drive, desire, or urge to commit

a relevant sexual offence.

Mr Dixon has been convicted of three sexual offences against two females aged 16 and 19-years-old. While unverified, he has also disclosed multiple undetected rapes against relatively unknown females, prior to being incarcerated for his index offending. During assessment, Mr Dixon evidenced an ongoing high degree of sexual preoccupation and drive to engage in casual sexual activities at a high frequency. During his previous recall (February 2016), he rapidly engaged in causal (sic) sexual encounters via access to online dating sites. He reported to engage in rough sex with his alleged current partner and lacked insight into high-risk lifestyle choices. Mr Dixon reported no current intentions to sexually reoffend, given his learnings from the ASOTP and his desire to remain out of prison. He articulated cognitive and behavioural strategies to remain focussed on healthy sexual thoughts and activities, with consensual sexual partners. Conversely, Mr Dixon has recently become non- compliant with Probation, suggesting superficiality to his reported intentions to remain free of further relevant sexual offending.

In summary, it is the writer’s opinion that Mr Dixon has previously displayed an intense drive, desire and intentions to engage in coercive sexual behaviour and, since offending, he has continued to seek out high-frequency sexual activities with relatively unknown sexual partners. As such, he has and is likely to continue to deliberately place himself in high-risk situations for sexual reoffending. Mr Dixon’s sexual offence history (both sanctioned and

⁴ R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [56] - [57].

self-reported), indicated a pattern of sexual compulsivity, determination and effort. While Mr Dixon reported his intentions to never sexually reoffend again, the reliability of his intentions to remain free of sexual reoffending have not yet been established, due to the insufficient time Mr Dixon has had in the community.

[15] Having regard to the nature and circumstances of Mr Dixon’s previous offending and Ms Hunter’s evidence, I am satisfied that Mr Dixon displays an intense drive, desire or urge to commit a relevant sexual offence.

Does Mr Dixon have a predilection or proclivity for serious sexual offending?

[16] A person has a predilection for serious sexual offending if they have a preference or particular liking for serious sexual offending.⁵ A person who has a proclivity has an inclination toward something considered morally wrong, such as serious sexual offending.⁶

[17] The report of the health assessor addresses this issue as follows:

35 The offender’s predilection or proclivity for serious sexual

offending.

Mr Dixon has been convicted of three sexual offences against two females aged 16 and 19-years-old and has disclosed having engaged in multiple undetected sexual offences (rapes), against relatively unknown females. It is the writer’s opinion that Mr Dixon’s sexual offence history (both sanctioned and self-reported) evidenced a pattern of predilection and proclivity for serious sexual offending against known and unknown females, prior to his incarceration for the index offending.

[18] Having regard to the nature and circumstances of Mr Dixon’s previous offending and Ms Hunter’s assessment of Mr Dixon, I am satisfied that Mr Dixon has both a predilection and proclivity for serious sexual offending.

Does Mr Dixon have limited self-regulatory capacity?

[19] The expression “limited self-regulatory capacity” was considered by Heath J

_{in Chief Executive of the Department of Corrections v B:}⁷

⁵ _{Chief Executive of the Department of Corrections v B [2016] NZHC 2816 at [66].}

⁶ _{At [66].}

⁷ Chief Executive of the Department of Corrections v B, above n 5, (footnotes omitted).

[91] I am not aware of any authority that has considered specifically the question of what is meant by the phrase “limited self-regulatory capacity”. Use of the word “limited” suggests that questions of degree are involved in this assessment. The phrase is used in the context of a list of factors that must be established before an extended supervision order can be made. The apparent nexus is between the existence of limited self-regulatory capacity (on the one hand) and high risk of committing a relevant sexual offence (on the other).

[92] At one level, the inquiry is directed to whether an offender has a limited capacity to self-regulate his or her desires or urges to commit relevant sexual offences. Put another way, the question is whether an offender has sufficient capacity to self-regulate those impulses. Yet, to approach the issue in that way is over simplistic. As a matter of common sense, the extent of any ability to self-regulate those impulses is dependent on the capacity to avoid circumstances in which the relevant drive, desire or urge are likely to manifest themselves. ...

[20] The report of the health assessor addresses this issue as follows:

36 The offender’s self-regulatory capacity.

Mr Dixon’s documented offending, file information and self-report has demonstrated his limited ability or motivation to contain his sexual urges. He has engaged in sexualised activity from early adolescence with high numbers of sexual partners, and self-reported and sanctioned coercive sexual interactions. Mr Dixon reported to have accessed newly met females as sexual partners by way of dating sites on a daily basis when last paroled. While Mr Dixon has not incurred prison misconducts since 2013 (for fighting), he was breached and recalled in March 2016 for breaching his sentence conditions (with drug paraphernalia). Moreover, he has attended only one Probation Service report in since his release in 22

November 2016 and his whereabouts are currently unknown.

In summary, it is the writer’s opinion that Mr Dixon has presents

(sic) with limited self-regulation.

[21] I am satisfied that Mr Dixon has limited self-regulatory capacity.

Does Mr Dixon display a lack of acceptance of responsibility or remorse for past offending?

[22] The report of the health assessor addresses this issue as follows:

37 The offender’s acceptance of responsibility and remorse for past

offending.

Mr Dixon verbalised acceptance of his offending for the most part. Through psychological treatment it seems that his acceptance of personal responsibility for his offending has increased. Mr Dixon

did not, however, evidence congruent emotional responses often seen with genuine remorse. When asked about his greatest risk, rather than indicate high-risk scenarios, Mr Dixon stated that his highest risk was to himself should his victims’ families inadvertently see him and seek vengeance. Moreover, when previously paroled in the community Mr Dixon placed himself at an increased risk for potential sexual offending by meeting previously unknown women through the internet, with the intention of sexual interactions. This indicated limited responsibility for minimising the risk of further sexual reoffending.

In summary, it seems that with education Mr Dixon has increased his self-responsibility for the index offending. He has verbalised his remorse for the harm he inflicted to his victims. However, Mr Dixon engaged in risk-aligned sexual behaviours in the community. It is the writer’s opinion there is mixed evidence in this domain, and his responsibility taking remains at a somewhat superficial level.

[23] I take into account both Mr Dixon’s verbal expression and his conduct. Given the mixed evidence referred to by Ms Hunter I am not satisfied that Mr Dixon has fully accepted responsibility and remorse for past offending.

Does Mr Dixon display a lack of understanding for or concern about the impact of his sexual offending on actual or potential victims?

[24] The report of the health assessor addresses this issue as follows:

38 The offender’s understanding for or concern about the impact of his

or her sexual offending on actual or potential victims.

During interview Mr Dixon verbalised his understanding of the potential short and long term impacts of his offending. He articulated multiple likely problems that his victims may experience due to his sexual assaults, albeit in a perfunctory manner. Mr Dixon vehemently conveyed several times that he would not sexually reoffend in the future. His primary reason for this was that he wished to live a normal life in the community and not return to prison. As such, the depth of genuine concern evidenced by Mr Dixon for harm caused to his victims appears somewhat wanting.

[25] I am satisfied that Mr Dixon does not have a full understanding for or concern about the impact of his sexual offending on actual or potential victims.

Does Mr Dixon pose a high risk of committing a relevant sexual offence?

[26] The report of the health assessor addresses this issue as follows:

46 In summary, based on a multi-method assessment, Mr Dixon is considered to be at very high risk of committing a further relevant sexual offence over the next ten years, while in the community. Mr Dixon has been convicted for sexual offences against two female adult victims aged 16 and 19-years-old and has disclosed multiple occasions of undetected sexual offending against known and unknown females similarly aged and older. Mr Dixon’s estimated very high risk has in part been accounted for by his self-disclosed historical sexual offending. While his disclosures remain unverified, his self-report has remained consistent in content across time and psychological contexts. When previously released from prison 2

February 2016, Mr Dixon was convicted of two breaches of release conditions (for drug paraphernalia) and was re-incarcerated.

47 Mr Dixon evidences a high number of dynamic risk factors, verbal motivation to remain offence-free (although this remains unconvincing), and unproven treatment gains (through completion of the STURP and the ASOTP). He was exited from the DTU in 2013 prior to completing and as such, remains untreated for drug and alcohol use. Only recently released from prison (22 November

2016), Mr Dixon has failed to attend his second Probation appointment and his current whereabouts are unknown. Mr Dixon does not have a current safety plan that addresses his risk of sexual reoffending. He is due to commence intervention with a Departmental Psychologist for safety planning and to support during his early reintegration.

48 Mr Dixon has previously displayed an intense drive, desire, or urge to commit a relevant sexual offence, and his sexual offence history indicates a pattern of sexual compulsivity, opportunism, impulsivity, determination, and planning. He is yet to display depth of remorse and pro-active risk management. Mr Dixon will need to demonstrate sustained generalisation of his learnings to be considered as actively managing his risk. Mitigation of his risk will likely be better (leastways in the short term), if assisted by external monitoring and management. This may also enable Mr Dixon to engage in further safety planning and treatment, and his drug and alcohol programme alongside of the Probation Service.

[27] I am satisfied that there is a high risk that Mr Dixon will in future commit a relevant sexual offence.

Determination under s 107I

[28] I am satisfied that Mr Dixon has a pervasive pattern of serious sexual offending and that there is a high risk that he will in the future commit a relevant sexual offence. I have made that determination on being satisfied that Mr Dixon displays an intense drive, desire or urge to commit a relevant sexual offence and has both a predilection and proclivity for serious sexual offending. I am satisfied that he

has limited self-regulatory capacity, that he has not fully accepted responsibility or remorse for past offending, and that he does not have a full understanding for or concern about the impact of his sexual offending on actual or potential victims.

[29] I am satisfied that this is an appropriate case in which to exercise my discretion to make an ESO.

Appropriate length of extended supervision order

[30] I now consider the term of the ESO, which must not exceed 10 years.⁸ The term of the order must be the minimum period required for the purposes of the safety of the community, in light of the level of risk posed by Mr Dixon, the seriousness of the harm that might be caused to victims, and the likely duration of the risk.⁹

[31] The Chief Executive seeks a term of 10 years. I am satisfied that 10 years is an appropriate term. Mr Dixon has demonstrated that he has a pervasive pattern of serious sexual offending that began in adolescence. I accept the health assessor’s opinion that:

45 In summary, Mr Dixon currently requires high risk management based on his current release circumstances and his high level of dynamic risk factors. ...

46 In summary, based on a multi-method assessment, Mr Dixon is considered to be at very high risk of committing a further relevant sexual offence over the next ten years, while in the community. ...

Result

[32] Mr Dixon is subject to an extended supervision order for a period of 10 years commencing today.

[33] In addition to the standard extended supervision conditions set out in s 107JA of the Parole Act 2002, I impose five special conditions which are set out in Mr Dixon’s 1 March 2017 release license. Those special conditions are to cease to

_{take effect after 17 September 2017, and are as follows:}

⁸ _{Parole Act, s 107I(4).}

⁹ Parole Act, s 107I(5).

(a) If meets criteria and if directed, to undertake a psychological assessment, and complete such psychological counselling/treatment as is then recommended, to the satisfaction of the probation officer and service provider.

(b) To attend and complete such counselling/programme/treatment to address identified offending behaviour as may be directed by the probation officer and to the satisfaction of the probation officer and programme provider.

(c) Undertake alcohol and other drug assessment, and complete any recommended counselling or treatment for abuse of alcohol and other drugs, to the satisfaction of the probation officer and programme provider.

(d) To reside at an address approved by a probation officer and not move address without the prior written approval of a probation officer.

(e) Not to purchase, possess or consume alcohol and/or illicit drugs, nor the consumption of illicit drugs.

Gordon J