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Chief Executive of Department of Corrections v McGreevey [2017] NZHC 527 (22 March 2017)

Last Updated: 5 May 2017

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000125 [2017] NZHC 527

_{JUDGMENT OF DUNNINGHAM J}

[1] The Chief Executive of the Department of Corrections (the Chief Executive) applies for an Extended Supervision Order (ESO)¹ in relation to the respondent, Mr McGreevey, for a period of 10 years, along with an order requiring the Parole Board (the Board) to impose an intensive monitoring condition on the respondent.²

[2] Mr McGreevey no longer challenges whether the threshold for making an ESO is met. However, he resists the application for an order requiring an intensive monitoring condition to be imposed on him.

Respondent’s eligibility for an ESO

[3] Under s 107F(1)(b) of the Act, the Chief Executive may apply for an ESO in

_{respect of an “eligible offender” where the offender is subject to a current ESO, at}

¹ _{Pursuant to s 107F, Parole Act 2002.}

² _{Pursuant to s 107IAB.}

THE CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS v PATRICK JOHN MCGREEVEY [2017] NZHC 527 [22 March 2017]

any time before the expiry of the order. An ‘eligible offender’, under s 107C of the Act, means a person who is not subject to an indeterminate sentence but who has been sentenced to imprisonment for a relevant offence.

[4] In December 2004, the respondent was sentenced to three years’

imprisonment following conviction for an indecent act with a boy between the age of

12 and 16, and abduction of a child under the age of 16.³ His convictions are for “relevant sexual offences” under s 107B(2) of the Act. As a consequence, he was made subject to an ESO for a period of 10 years, commencing on 26 May 2008.

[5] The current ESO is not due to expire until 2020, because it excludes periods during which Mr McGreevey was imprisoned for breaches of that order. However, there is jurisdiction to grant a new order under s 107L(3) of the Act despite the existing order being in place and having time to run.

[6] In this case, a new order is being applied for because the Chief Executive seeks an order requiring the Board to impose an intensive monitoring condition on Mr McGreevey. Intensive monitoring conditions have only been available since the Act was amended in 2014,⁴ so where an intensive monitoring condition is required for someone subject to an existing ESO, a new ESO must be sought.⁵

Criteria for making an ESO

[7] The purpose of an ESO is to protect members of the community from serious sexual or violence offending.⁶ The threshold for the making of an order was elevated as a result of the 2014 amendment to the Act. The Court may now only make an ESO if it is satisfied that either there is a high risk for the offender to commit a relevant sexual offence in the future; and/or that the offender is highly likely to commit a relevant violent offence in the future.⁷ That is established with the

_{assistance of a report from a health assessor. In this case a report has been provided}

³ _{R v McGreevey DC Christchurch CRI-2004-009-009312, 17 December 2014, per Judge Kerr.}

⁴ _{Parole (Extended Supervision Orders) Amendment Act 2014.}

⁵ _{Chief Executive of the Department of Corrections v Ranui [2016] NZHC 1174 at [9]- [12].}

⁶ _{Parole Act 2002, s 107I(1).}

⁷ Section 107I

by Ms Katrina Beach, a registered clinical psychologist for the Department of

Corections.

[8] Section 107IAA(1) of the Act outlines the factors that must be considered when assessing whether there is a high risk of the offender committing the relevant sexual offences. It states:

(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:

(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.

[9] In the context of an application for an ESO, the meaning of “is satisfied” discussed in R v Leitch, which discussed that term in the context of applications for preventive detention, has been adopted:⁸

The need to be ‘satisfied’ calls for the exercise of judgment by the sentencing court...the phrase “is satisfied” means simply “makes up its mind” and is indicative of a state where the court on the evidence comes to a judicial decision. There is no need or justification for adding any adverbial qualification.

I now consider these factors as they relate to Mr McGreevey.

Displays an intensive drive, desire, or urge to commit relevant sexual offences

[10] According to Ms Beach’s report, there is mixed evidence regarding the

_{degree to which Mr McGreevey displays for an ongoing intense drive, desire or urge}

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

8 December 2004 at [21], citing R v Leitch [1998] 1 NZLR 420 (CA) at 428.

to commit a relevant sexual offence. However, in Ms Beach’s opinion, the evidence of the respondent’s personality and behaviour suggests that the respondent still displays a drive to commit relevant sexual offending. She bases this opinion on the evidence that Mr McGreevey has continuously demonstrated an interest in images of children and being in the vicinity of children, which he generally tries to hide.

Predilection or proclivity for serious sexual offending

[11] Ms Beach is of the opinion that Mr McGreevey still has a predilection towards sexual offending against children and abduction for sexual purposes. The respondent has reported fantasising about offending against children for the duration of the current ESO. Apparently, he attempted to plan a possible abduction against a male offender whom he met in prison and another woman with whom he had a consensual sexual relationship. Ms Beach notes that the respondent maintains a predilection for committing serious sexual offences as opposed to seeking consensual sex with adults known to him.

Limited self-regulatory capacity

[12] In Ms Beach’s opinion, there is mixed evidence as to whether the respondent has the capacity to regulate his sexual behaviour. On the one hand, the respondent has not been accused of any sexual offending in the past eight years. While Mr McGreevey has repeatedly absconded from his extended supervision, there have been no reports of sexual offending during his absence.

[13] However, the respondent has been caught with possession of deviant material, and has wanted risky entertainment material. It seems sexual deviance continues to be present in an enduring manner for which the respondent appears to have little appetite to seek assistance for or to change.

Responsibility and remorse for past offending

[14] In Ms Beach’s opinion, there is no evidence to support Mr McGreevey accepting the full responsibility for his offending or remorse for his offending. Mr McGreevey continues to insist that the indecent assault with the boy was

consensual and denies that the attempted abduction of the nine year old girl was sexually motivated.

[15] In summary, in Ms Beach’s opinion, there is a high risk of Mr McGreevey

committing a further relevant sexual offence if released back into the community.

Conclusion on the application for grant of an ESO

[16] I am satisfied that Ms Beach’s opinion as to the ongoing risk of sexual offending is justified on the information she discusses in her report and I accept the conclusion that there remains a high risk he will commit a relevant sexual offence. Furthermore, the respondent concedes that the threshold for an ESO to be made is established. Accordingly, there is jurisdiction to grant an ESO for a further 10 years, and I consider it is appropriate to do so.

[17] However, as the primary reason for applying for a fresh ESO at this stage was to enable an application for an intensive monitoring condition to be made, I enquired as to whether the applicant would still want a fresh ESO made should I decline to grant the application in respect of the intensive monitoring order.

[18] Pursuant to leave reserved, Ms Currie made enquiries and reported back that the Chief Executive’s position is to pursue the application for an ESO to be made for a further period of 10 years, whether or not the Court granted the application in relation to intensive monitoring.

Intensive monitoring

[19] The only disputed issue at the hearing was whether the Court should order imposition of an intensive monitoring condition.⁹ An intensive monitoring condition is a condition requiring an offender to submit to being accompanied and monitored

_{for up to 24 hours a day.}¹⁰ _{An intensive monitoring condition may only be imposed}

⁹ _{Parole Act 2002, s 107IAC(1).}

¹⁰ Section 107IAC(2).

for up to 12 months,¹¹ and the Court may not make an order more than once, even if the offender is subject to repeated ESOs.¹²

[20] As noted in the Chief Executive’s submissions, the Act does not provide any statutory threshold as to when intensive monitoring is required and it would seem that the Court has a wide discretion as to whether to impose such a condition. However, in doing so, the Court needs to be mindful of the significant inference with the offender’s freedom that such an order represents. As observed by Heath J in

Ranui:¹³

...The need for an order from this Court recognises the invasive nature of the condition that requires one-on-one supervision for up to

24 hours each day, with its inherent interference with the subject’s

right to liberty and freedom of movement.

[21] As with any limitation on an individual’s freedom, I consider that the restrictions such an order would impose on Mr McGreevey’s freedom would need to be demonstrably justified in the circumstances that I am presented with.¹⁴ In this case this includes Mr McGreevey’s record of behaviour under the current ESO. Heath J made a similar observation in Ranui saying:¹⁵

In the context of a person such as Mr Ranui, the assessment of his likely risk must be made in the context of the monitoring arrangements under which he is currently supervised, taking into account any conditions that are likely to lapse in the near future. If that high threshold were not met, the existing conditions must be treated as sufficient to protect the community from the risks that Mr Ranui poses to it.

[22] Neither the psychologist’s report or the Chief Executive’s submissions provided any real detail as to why an intensive monitoring condition should be granted and, despite hearing from the Chief Executive, I remain unconvinced as to why intensive monitoring should now be imposed on Mr McGreevey.

[23] I was referred to the ongoing risk which Ms Beach identified in the conclusions to her report, and her conclusion that, “in light of these ongoing risks,

¹¹ _{Section 107IAC(3).}

¹² _{Section 107IAC(5).}

¹³ _{Ranui, above n 5, at [9](a).}

¹⁴ _{Reflecting s 5 New Zealand Bill of Rights Act 1990.}

¹⁵ At [10].

there would be a public benefit in a period of up to 12 months’ intensive monitoring”. However, as Ms Bailey noted in submissions, it is relevant that Mr McGreevey is currently living with a high degree of supervision. The residence he lives in is run by staff employed by Christchurch Residential Care and those staff are present both day and night. This level of supervision has been effective for eight years. There is no obvious reason explaining why, if intensive monitoring is imposed now for a period of 12 months, it will be of utility. While Mr McGreevey has previously left the address without authority, that has only occurred once in the last five years and it is likely that the level of restrictions he has been subject to was a substantial cause of that. Ms Bailey submitted that further restrictions on his movements and greater monitoring may well, in fact, be counter-productive in those circumstances.

[24] In my view, intensive monitoring is most likely to be justified in the first year of an offender’s release from prison, where it can assist in the transition of an at risk person living in the community under the ESO. It might also be imposed where there is some particular intervention proposed, or new risk identified, and where an offender who is subject to an existing ESO would benefit from a temporary period of closer supervision. However, no circumstances such as this arise in the present case.

[25] I consider there is inadequate evidence to suggest that the conditions of Mr McGreevey’s current ESO will not protect the community from the risks that Mr McGreevey poses to it and to support the making of an order requiring an intensive monitoring condition to be imposed. I therefore decline to order imposition of an intensive monitoring condition.

Commencement of ESO

[26] Given the relatively short time left to run on the current ESO, Ms Currie notes that under s 107L of the Act, the commencement date of the new ESO is on the expiry of the current ESO unless an earlier date is specified in the new order.

[27] I therefore have to consider whether to allow the order to commence in 2020, which is the default position, or earlier. In light of my decision to decline to order an intensive monitoring condition, there is no need to specify an earlier commencement

date to trigger that requirement. However, I am uncomfortable with deferring the commencement to 2020, as that effectively means I am determining that Mr McGreevey will be subject to an ESO for a further 13 years from here, when the legislation envisages a 10 year maximum duration.

[28] Accordingly, I make an ESO in the terms sought and it is to come into force on 27 March 2017. For completeness, Mr McGreevey’s current conditions will continue in force, as per s 107L(2A), for the first three months of the new order.

Solicitors:

Raymond Donnelly & Co., Christchurch

S G Bailey, Barrister, Christchurch