Barr v Chief Executive of the Department of Corrections

[2006] NZCA 313

IN THE COURT OF APPEAL OF NEW ZEALAND

CA60/06

BETWEENNICHOLAS DAVID BARR

Appellant

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:30 May 2006

Court:O'Regan, John Hansen and Gendall JJ

Counsel:J C Gwilliam for Appellant

K J Beaton for Respondent

Judgment:20 November 2006 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Gendall J)

[1]       The appellant was sentenced to four years imprisonment on 19 February 2002 for sexual violation of a six-year-old girl between May and September 1996.  He was released on parole on 23 June 2004 subject to the standard release conditions.  The Chief Executive of the Department of Corrections applied to the District Court at Wellington for an Extended Supervision Order (ESO) under Part 1A of the Parole Act 2002.  The respondent was an eligible offender within the meaning of s 107C and the Chief Executive considered, based upon a health assessor’s report, that the appellant was likely to commit an offence under the relevant section of the Parole Act 2002.

[2]       After a defended hearing the District Court Judge made an ESO for a term of four years commencing from 18 January 2006.  It is against that order that this appeal is brought.

Background facts

[3]       The background facts are recorded in the reserved judgment of the District Court Judge.  The appellant was convicted in November 1996 of indecent assault of a three and a half year old girl, involving digital penetration of her vagina.  She was the daughter of a family with whom the appellant was boarding at the time.  The charge was initially one of sexual violation, but had been amended to indecent assault to which the appellant pleaded guilty.  He was sentenced to 12 months imprisonment followed by 12 months supervision. 

[4]       Earlier, between May and September 1996, the appellant had similarly offended against another female child.  This did not come to light until he disclosed the offending to a psychologist whilst undergoing treatment pursuant to the sentence of supervision earlier imposed.  The offending also involved digital penetration of the vagina of a six-year old girl in her bedroom at night, and was repeated on a number of occasions over four months.  The victim was a child who had been left in the care of the appellant by the family with whom he was boarding. 

[5]       The appellant pleaded guilty to the representative charge and was sentenced in the District Court to five years imprisonment on 19 February 2002.  That sentence was reduced to four years on appeal.  It is this later conviction for the sexual violation of the child which is a relevant offence under s 107B of the Act.  The appellant was an eligible offender under s 107C, and accordingly liable to an ESO.

[6]       After being released on parole on 23 June 2004, the appellant was subject to special release conditions regarding residence, attending various programmes and counselling.  He was required not to have contact with children under the age of 16 years unless under the direct supervision of an adult approved by the probation officer.  He attended a community-based STOP Programme for treatment of sexual offenders, and completed the programme satisfactorily.  He received positive reports. 

District Court decision

[7]       The District Court Judge observed that the appellant, in opposing the application, asked “What more could I have done?”  The Judge said that the legislation required that such feelings be put to one side, concentrating on the assessment of continuing risk of offending against children so as to ensure that where the risk is present it is managed and the safety of potential young victims advanced.  The Judge said that if a risk remained, prior efforts at rehabilitation could not be a reason to refuse an order.  He did not regard a balancing exercise to be carried out, that is, whether to balance the level of risk and the need for community protection, as against any intrusive nature of an order and the effect on the appellant’s liberty, because an intrusion was a consequence of the necessary protection required once the risk was established.

[8]       The Judge had a report of a health assessor, a clinical psychologist.  She also gave evidence before the Judge, and was cross-examined.  As is usually the case in these applications, health assessors use assessment tools as part of their assessment of establishing future risk.  One test is known as the Static-AS tool.  It is an actuarial instrument which assesses the probability of sexual recidivism against seven statistical factors, estimating the probability of sexual re-offending by males who have been convicted of at least one sexual offence against a minor or non-consenting adult.  The risk factor is obtained from an offender’s official criminal record and is based upon a method developed in North America and used internationally to predict sexual recidivism.  The appellant scored four on this test, indicating a medium-high risk of re-offending.

[9]       Another test is known as the SONAR (Sex Offender Need Assessment Rating) tool which assesses dynamic factors, to be contrasted with statistical probabilities of sexual recidivism amongst males who have already been convicted of at least one sexual offence against a child.  The appellant’s score on the SONAR indicated low risk of sexual recidivism.

[10]     The Judge referred to those tools and the cross-examination of the health assessor.  He noted that some of the results from the Static-AS test represented a “rather imprecise categorisation which may have the result of putting an offender into a higher risk assessment than would otherwise be the case”.  Accordingly, the Judge said he approached the health assessor’s assessment of risk using the statistical tool with “considerable caution”.  The Judge then referred to the clinical risk factors which related specifically and personally to the appellant, concluding that the evidence satisfied him that:

There is a real and ongoing risk of sexual offending by Mr Barr against children.  I am not bound to accept [the psychologist’s] opinion but having taken time to consider her report and her evidence I have no reason to doubt her professional opinion.  Whilst it needs to be borne in mind that this offending occurred during a few months in 1996 and that nothing further has happened since then, it needs also to be noted that during most of the time since then Mr Barr has been subject to either incarceration or intensive supervision.  The repetitive nature of the offending must be regarded as a significant factor.

[11]     After concluding that an ESO ought to be made, the Judge then turned to consider its duration which in terms of s 107I(5) was required to be the minimum period for the purposes of safety of the community in light of

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

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

(c)The likely duration of risk.

[12]     The Judge noted the psychologist’s opinion that the order should be for the maximum period of ten years but concluded that there must be a possibility that change is apparent, and the appellant’s life can be sustained, and that the level of risk might well be assessed at a lower level in the future.  Accordingly, the Judge fixed a period of four years supervision as being appropriate, noting that after that a period of 13 years would have elapsed since that offending during which time the appellant would have been subject to six years supervision.

[13]     It is against those orders that the appeal is brought seeking to quash the ESO made. 

Evidence before the District Court Judge

[14]     Section 107F(2) provides that a report by a health assessor is required, and such was before the District Court Judge.  The psychologist was of the opinion that the appellant was at a “medium high risk” of committing further relevant sexual offences.  She noted that the appellant had taken a community-based treatment programme and accepted responsibility for the offending, as well as showing appropriate remorse and being free from substance abuse, but:

…Mr Barr has elected to live with a person who is viewed as likely to implicitly or explicitly collude with behaviours supportive of child sex offencing [sic], against the advice of CPS [Corrections Psychological Service].  He refused appropriate treatment while in prison, and the treatment he has undertaken in the community is less intensive than that offered at Kia Marama and Te Piriti.  Finally, the index offending was repeated over a period of several months against the child with whom he had a caretaking relationship.  The weight of historic and current evidence as assessed clinically and actuarially supports the view that this offender requires continued supervision to manage his risk of re-offending.

[15]     The report did not explicitly refer to the matters contained in s 107F(2) in a formal sense, but they were touched upon generally.  The psychologist was cross-examined by counsel for the appellant largely in relation to the statistical Static-AS test, and how a score under such a statistical assessment may be influenced by previous convictions and sentencing dates.  Further, she was cross-examined as to her assessment of the appellant in the dynamic predictors as they specifically relate to the individual, on the SONAR test. 

[16]     After considering the psychologist’s report and hearing the cross-examination the Judge clearly felt some diffidence about accepting at face value the propositions of the assessor.  The application was adjourned part-heard to enable the health assessor to provide a further report.  This was delivered on 21 December 2005, the oral hearing had occurred about a week earlier.  In that further document, described as an “Addendum Report”, the psychologist sets out each of the risk factors as provided in s 107F(2) and expresses opinions or views about them.

[17]     In summary, the opinions of the health assessor in the Addendum Report were that “any further previous [sic] sexual offending by Mr Barr is likely to involve genital touching of girls under twelve with whom he is in a caregiving relationship”;  his ability “to control his sexual impulses appears unlikely to contribute to dynamic risk factors as long as he is able to maintain the gains he has made”;  “Historically there is evidence of sexual arousal to young girls.  Mr Barr has developed strategies to mitigate any cognitive distortions which sexualise young girls”;  in admitting to the offending and undertaking treatment, “Mr Barr has shown acceptance of responsibility and remorse for past offending”.  The assessor said that the appellant had a robust safety plan and had overcome the disinhibiting factor of illicit substance abuse.  Nevertheless, the psychologist concluded:

Although the contribution of the dynamic risk issues relevant to Section 107F(2) appears to be low at this time, this needs to be placed in the context of Mr Barr’s categorisation of being at medium-high risk of re-offending sexually against children according the Static-AS score.  This categorisation means that his risk of committing any sexual offence at five years post-release is 11%;  that is, of offenders in this category about one in ten will commit a further sexual offence.  At ten years post-release, the risk of committing a sexual offence is 24%;  that is, almost one on four offenders with this score will commit a further sexual offence.

[18]     The assessor reported that the weight of historic and current evidence both actuarially and clinically (that earlier related to the appellant) supported the view that he required continued supervision to assist and manage a risk of re-offending.

Appellant’s submissions

[19]     On behalf of the appellant, Mr Gwilliam submitted that the provisions in the Act relating to ESO were inconsistent with the freedoms and rights guaranteed to citizens under the New Zealand Bill of Rights Act 1990 (NZBORA), in particular freedom of association, freedom of movement, the liberty of the person and protection from retrospective penalties and double jeopardy and also with privacy rights.  He submitted that the Court, when exercising the residual discretion to make an ESO, had to weigh whether the need to protect the community sufficiently outweighed such restrictions that the making of such an order would have on the rights and freedoms guaranteed under the NZBORA.  These were arguments that had earlier been presented to this Court which has now delivered its decision in Belcher v Chief Executive of the Department of Corrections CA184/05 19 September 2006.  This Court concluded that an ESO is a penalty, and may be retrospective, and therefore breached s 26 of the NZBORA but that did not affect validity of the Act.  The delay in delivering this judgment has arisen because the Court was awaiting delivery of the decision in Belcher.

[20]     Mr Gwilliam argued that the responses of the psychologist were generally favourable to the appellant to such an extent that the Judge could not have properly concluded that there was a real and ongoing risk of sexual offending by the appellant against children. 

[21]     The issue before us is whether on all the evidence and material available to the Judge he erred in the exercise of his discretion to make an ESO.

Discussion

[22]     As indicated to counsel at the hearing, we awaited the Belcher decision rather than undertaking a parallel evaluation of the NZBORA arguments.  The arguments put to us effectively adopted those put to the Court in Belcher and we adopt the Court’s decision in that case at [49] and [55]-[56].

[23]     We now turn to the arguments focussed on the appellant’s personal situation.  We note at the outset that it is the risk of further sexual offending in the future at which the legislation is aimed.  The risk must be real and ongoing, being one that cannot sensibly be ignored having regard to the nature and gravity of the likely re-offending:  Belcher at [11].

[24]     It has to be borne in mind that it is not a health assessor who determines these applications, but of course the opinion of such an expert is required.  Yet in the end it is for the Judge to make up his or her own mind after hearing all the evidence and considering all the statistical, historical and current circumstances to decide whether the pre-condition for making the order exists.  The Court has to ask whether it is satisfied, having considered the matters addressed in the health assessor’s report, and any other evidence, whether the offender is likely to commit any of the relevant offences.  It requires a measured independent judgment on the part of the Judge, weighing up all the relevant circumstances.

[25]     In the present case, apart from the health assessor’s two reports, the oral evidence given by her and her cross-examination, the Judge had historical material in the form of earlier sentencing notes and other pre-sentence and psychological reports earlier obtained.  There was no evidence adduced by the appellant before the District Court Judge.

[26]     Some anomalies were seen to arise out of the statistical assessment of the appellant under the Static-AS test because of the factors used to score such risk.  In particular, an offence of possession of a weapon was treated as “violent offending”.  And the appellant was attributed with two sentences for prior sexual offending, when those two sentences were for the same offence.  Some confusion arose over statistical risk factors.  The Judge’s finding that the latter anomaly was offset because the appellant had been charged with a representative charge so as to make his score high anyway was in fact incorrect.  The respondent accepts that, because the test is dependent not on the number of sentencing dates but the number of prior sentences, and the prior sentence relevant to the appellant was a singular incident and not representative.  If neither of these factors had applied, the appellant’s score would have indicated medium-low risk, rather than medium-high risk.  The Judge was aware of the anomalies in the statistical projection, and that problems with offence categorisation and prior sentences worked against the appellant in the statistical scoring under the Static-AS test.  The Judge made it clear that he approached assessment of any risk using the Static-AS tool “with considerable caution”.

[27]     As noted earlier, the appellant’s score on the SONAR was indicative of a low risk of sexual recidivism.  However, the psychologist said this was a less reliable indicator than the Static-AS test.

[28]     Notwithstanding the favourable SONAR result and the Judge’s caution about the Static-AS tool, the Judge concluded, consistently with the opinion of the psychologist, that there was a real and ongoing risk of further sexual offending by the appellant against children.  The psychologist’s clinical assessment was that there was a moderate-high risk of re-offending by the appellant, though she noted a number of factors which would lower that risk, which were all being addressed by the appellant.  In cross-examination, however, she accepted that clinical judgment was less reliable than assessments based on Static-AS or SONAR.  To some extent her clinical judgment appeared to be derived from the Static-AS result, but as noted earlier the unusual factors leading to that result caused the Judge to treat it with caution.

[29]     The Judge said he was influenced by the sexual offending during a few months in 1996, and although there had been no further offending since then, most of that time the appellant had been subject to imprisonment or supervision and the repetitive nature of his offending in 1996 was a significant factor.  Mr Gwilliam challenged this.  He said there were considerable periods when the appellant was not imprisoned, on parole or under supervision.  He said the offending which led to the representative charge, although repetitive, involved a single victim and occurred within a comparatively short period of four months.  There is some truth in both those points, but neither was decisive to the Judge’s conclusion.

[30]     This case was very finely balanced.  It could have been open for another Judge to reach the view that an ESO was not necessary to protect members of the community from the appellant.  But the Judge took a different view.  He had no counter-balancing or other psychological opinion or assessment before him.  He only had that which was presented on behalf of the Chief Executive.  Apart from having the health professional’s reports, the Judge saw her giving evidence and being cross-examined.  He was cautious enough to require a further report to be presented.  Clearly the Judge was influenced by the long history of drug abuse and criminal activity of the appellant together with his initial refusal to undergo treatment whilst in prison.  Although there had been alcohol and drug counselling and attendance at the STOP Programme for sexual offenders, with an apparent change in attitudes and lifestyle on the part of the appellant, it is apparent that the Judge weighed these matters before coming to his conclusion.  Those clinical assessments were based upon past behaviour, attitudes and events, as they may relate specifically to the person under consideration.

[31]     Although, as we have said, the case was very much marginal, the Judge’s view was one which was open to him on the evidence before him.  We are satisfied that he applied the correct legal test, and approached the evaluation required by the Act appropriately.  We are not satisfied that he was wrong in his conclusion.

[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.

[33]     In this case the imposition of the four year term for the ESO, when viewed against the ten year maximum, indicates the Judge assessed the likely duration and level of risk as being substantially less than in many cases, but nevertheless it remained.

Result

[34]     The appeal is dismissed.

Solicitors:
John Gwilliam & Co, Wellington for Appellant
Crown Law Office, Wellington for Respondent