Barry v Department of Corrections
[2017] NZHC 1801
•1 August 2017
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2016-441-000044 [2017] NZHC 1801
BETWEEN GRAEME ALAN BARRY
Appellant
AND
DEPARTMENT OF CORRECTIONS Respondent
Hearing: 25 July 2017 Appearances:
C J Tennet and M Houra for Appellant
F E Cleary for RespondentJudgment:
1 August 2017
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Tuesday, 1 August 2017 at 11:30 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
C J Tennet, Wellington
Crown Solicitor’s Office, Napier
BARRY v DEPARTMENT OF CORRECTIONS [2017] NZHC 1801 [1 August 2017]
Introduction
[1] The appellant, Graeme Alan Barry, is subject to an extended supervision order imposed in June 2014. On 14 April 2016, Mr Barry was charged with an offence against s 107T of the Parole Act 2002 of failing without reasonable excuse to comply with a standard condition of his extended supervision order in that he failed to participate and adhere to the rules of a child sex offender relapse prevention group at a meeting of the group on 15 March 2016.
[2] After a defended hearing in the Napier District Court on 10 November 2016, the District Court Judge found the charge proved. On 20 December 2016, Mr Barry was sentenced to four months imprisonment. He now appeals against conviction.
District Court hearing
[3] In the District Court hearing on 10 November 2016, the prosecution called three probation officers, Jessica Turner, who was one of two facilitators of the meeting of the child sex offender relapse prevention group on 15 March 2016, and John Crowther and Sarah Robinson, both of whom had played a role in the supervision of Mr Barry. The defence called a probation officer, Brian Johnstone, and one of the other participants in the group meeting on 15 March 2016, Graeme Cross. The purpose of the group meeting was described by the District
Court Judge in the following manner:1
[4] The purpose of the meeting is to discuss life experiences and prevention strategies for sex offenders whose offending is so serious that it has led to them being placed on extended supervision orders. It is considered to be of the essence of success of meetings and programmes of the kind that there be multiple participants thereby with the advantage of sharing multiple experiences, both adverse past experiences and dangerous present experiences, so that a collective wisdom can evolve about preventive strategies. The common-sense in this is self-evident. The meetings are run by two facilitators. I am told that there are generally eight participants and sessions are held weekly.
[4] Ms Turner facilitated group meetings which included Mr Barry only twice. She described Mr Barry’s participation in the first meeting as disruptive and that he
interrupted frequently and did not want to engage in meaningful conversation.
1 Department of Corrections v Barry [2016] NZDC 26877.
Ms Turner said that Mr Barry constantly brought the meeting back to his perceived grievances against the Department. Ms Turner said that Mr Barry’s behaviour at the meeting of the group on 15 March 2016 was again the same, but almost worse. She said he was really disruptive, interrupted a lot and would not let the facilitators get a word in. She was of the view that his interventions disrupted the learning of the group and undermined its integrity. She was of the view that the meeting was not going anywhere, with the result that all the participants were “getting quite heightened” and they were upset, angry or frustrated. She and the other facilitator continuously tried to get the group back on topic, but Mr Barry kept bringing it back to how the Department had done him wrong and that probation officers were not qualified to run the group.
[5] The prosecutor referred to the condition of Mr Barry’s extended supervision order that he attend, participate in and adhere to the rules of the child sex offender relapse prevention group and asked Ms Turner to comment on whether or not Mr Barry was complying with those rules. Her response was:
Like you said before there’s no set rules, 1, 2, 3, 4 but there’s expectations and [Mr Barry’s] been in that group for a really long time so he is – assume that he knows what’s expected of him and I would say no.
[6] Then in answer to the question “And how would you assess the quality of his participation in that group on that occasion?”, her response was “Poor”. Then the following exchange took place:
Q. So the condition that we’re talking about obviously to participate in and adhere to the rules of that group, you’re the group facilitator, what was your view about whether or not he had met that condition on that occasion?
A. Not on that occasion, no, there was no participation.
[7] Immediately after the meeting on 15 March 2017, Ms Turner sent an email to a number of colleagues. In it she did not name or single out Mr Barry. In her email, Ms Turner stated:
Last night Sidney and I facilitated our second relapse prevention group for the CSO?s. It was extremely unproductive and unsafe.
The issue is that the men are struggling to get past the fact that we are Probation Officers, they spent the entire hour criticising us, complaining about the department, and pointing out our lack of training. Despite numerous attempts to redirect, refocus, move to positive discussion, they refused and continued to return to the above points.
The men have voiced they believe the group to be unproductive, and given the last number of sessions (with Brian included) we would agree this to be the case. We ask the men what they would like from their group, they refused to give any suggestions and given the limited confidentiality they believe Probation Officers can give, they don’t want to open up.
We have reflected on both our behaviour and their behaviour, and discussed the situation with other staff. On reflection we both agree that the group cannot continue in this format. We’ve discussed a couple of alternatives, one being that the group is run by a Probation Officer and Psychologist, or solely Psychologists, or have facilitators from Programmes that are trained to deliver RP, similar to a maintenance group.
We are unwilling to continue in the current format.
[8] The child sex offender relapse prevention groups had previously been facilitated by psychologists who were trained in group therapy. The group was apparently concerned that the probation officers assigned to facilitate their meetings were, first, not qualified to undertake group therapy and, second, were not bound by confidentiality as psychologists were.
[9] Ms Turner then gave evidence of a subsequent meeting on 23 March 2016 of various personnel connected with the group at which it was decided that Mr Barry would be exited from the group. He was subsequently charged with breaching the conditions of his extended supervision order.
[10] As to the expectations of the Department to which Ms Turner referred, Mr Crowther gave evidence that there had been discussions with Mr Barry at different times going back over a number of months in which Mr Crowther warned Mr Barry that there could be consequences if he did not participate in the group “the way the Department needed him to participate in it”. Then the following exchange took place:
Q. So what did you tell him about the expectations on him in respect of those groups?
A. What the expectation would be that he would follow the direction of the facilitators and, and that he needed to be a participant, not just to
sit on the sidelines but to actually contribute. I mean it’s all about, the relapse prevention group is all about managing risk, it’s all about managing high risk situations that they might come up and the idea of being in those groups was that they, that the men who attended it could actually share their experiences and actually look at ways in which they manage those experiences and whether there are things to be learnt from it.
Q. In terms of behaviour, what is the expectation?
A. My – the expectation would be that they would be polite and co- operative and if there was a particular direction that the group was to go in the expectation would be that the participants would go in that direction.
[11] Ms Robinson, the third probation officer called by the prosecution, then gave evidence that Mr Barry had never shown any great interest in participating in groups “especially not with what the facilitators needed him to participate in”. Then the following exchange took place:
Q. In terms of your satisfaction with Mr Barry’s adherence to these relapse prevention groups, how would you describe that?
A. Not at all satisfied. In fact it gives me grave concern because when you go through a treatment as a child sex offender it’s absolutely vital that you continue to attend these relapse and discuss the issues around high risk situations and things that may arise, if you are not discussing them there’s very little confidence in your ability to manage them…
[12] As noted earlier, the defence called a probation officer, Mr Johnstone, and one of other participants in the group meeting, Mr Cross. Mr Johnstone had in fact facilitated earlier meetings of the child sex offenders relapse prevention group. Mr Johnstone said that Mr Barry was a strong voice within the group and was initially resistant to a change in facilitators along with others in the group. In answer to the question “Was he disruptive at all?”, Mr Johnstone replied:
I wouldn’t have called his behaviour disruptive, he was challenging, at time he was resistant, on other occasions he was actually supportive and challenging other participants within the programme.
[13] Mr Cross was a participant in the meeting on 15 March 2016. He gave evidence about the meeting as follows:
Q. Did there become discontent?
A. Not to my knowledge, I never felt uncomfortable or anything in the group that day.
Q. Where there complaints made by the group that day? A. No, not, no there wasn’t.
Q. Did Mr Barry talk over people when they tried to talk? A. No that is a bad habit of my own.
[14] Mr Cross confirmed he did not feel uncomfortable, agitated or angry, nor did the facilitators ever say that they felt threatened or uncomfortable.
District Court decision
[15] In a short oral decision on the day of the hearing, the District Court Judge identified the charge as failing to participate in a child sex offender relapse prevention group. He said that the material words for the purposes of the present case were “To participate in the child sex offender relapse prevention group as directed by a probation officer”. He then referred to the evidence of Ms Turner, Mr Crowther and Ms Robinson. He set out the purpose of the meetings and summarised Ms Turner’s evidence in two paragraphs. The District Court Judge then commented that Mr Barry’s concerns “can and should be expressed in other quarters on other occasions”. The District Court Judge then summarised Mr Crowther’s evidence in two paragraphs and stated:
It is clear enough from Mr Crowther’s evidence that Mr Barry’s response to this, rather than being compliant, has been challenging, argumentative and even confrontational. In a reply to a question from me, Mr Crowther agreed that there was an element of subversiveness in Mr Barry’s apparent behaviour, intended to deflect the meetings away from their core business and into matters of grievance entertained by Mr Barry personally. As much as he might represent these as being grievances and whether they are grievances or not, this is not the occasion on which to express them.
[16] The District Court Judge made no reference to the evidence of Mr Johnstone or Mr Cross, both of whom were called by the defence. He concluded:
I am satisfied on the evidence of Ms Turner, supported in material respects by Mr Crowther, that Mr Barry has, in relation to the terms of his extended supervision order, failed to participate without reasonable excuse in a relapse prevention group convened on 15 March 2016 and facilitated by Ms Turner. That being so, the charge is proved.
Grounds of Appeal
[17] The appellant sets out five grounds of appeal.
(a) The charge was defective for vagueness, uncertainty, unreasonableness or breach of the New Zealand Bill of Rights Act
1990;
(b)Further, or alternatively, the charge breached the New Zealand Bill of Rights Act because the appellant was punished for holding opinions (s 13) and/or expressing himself (s 14);
(c) Further, and additionally, an important element of the charge was “without reasonable excuse”. The appellant’s behaviour did not constitute failing to participate and adhere to the rules of the child sex offenders relapse prevent group without reasonable excuse;
(d)Further, and additionally, the learned Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred. The learned Judge’s decision did not give reasons or conclusions and failed to weigh the evidence including defence evidence; and
(e) Further, and additionally, the learned Judge wrongly descended into the arena, in particular by suggesting to Mr Cowther when he was giving evidence that Mr Barry was being subversive.
[18] Although I heard argument on each of the five grounds of appeal, I am of the view that the appeal can be disposed of relatively shortly on the first ground of appeal.
[19] The first ground of appeal is that the charge was defective for vagueness, uncertainty, unreasonableness or breach of the New Zealand Bill of Rights Act. In answer to the first ground of appeal, the respondent submitted that Mr Barry had been subject to the condition at issue since December 2014 and had had frequent
discussions with his probation officers about the behaviour expected of him at meetings of the group. The respondent acknowledged that the breach in this case did not revolve around Mr Barry breaching a specific rule, rather his conduct at the meeting on 15 March 2016 was such that his participation was deemed unsatisfactory and he failed to meet the expected standards of behaviour.
Discussion
[20] The wording of the special condition imposed on Mr Barry by the Parole
Board was:
(5) To attend, participate in and adhere to the rules of the Child Sex Offender Relapse Prevention Group as directed by a Probation Officer, to the satisfaction of the Probation Officer and group facilitator.
[21] The charge laid against Mr Barry was slightly different in that it omitted any reference to attendance at group meetings and the requirement that attendance, participation in and adherence to the rules be at the direction of a probation officer and to the satisfaction of the probation officer and group facilitator. The charging document read:
Offence description:
Being a person who on the 27th day of June 2014 was sentenced in the Napier District Court to an Extended Supervision Order for a period of Eight (8) years and Six (6) month failed, without reasonable excuse, to comply with a standard condition of his order, in that he failed to participate and adhere to the rules of the Child Sex Offender Relapse Prevention Group.
[22] The omission of any reference to attendance was obviously because on the
plain meaning of the word “attend”, Mr Barry attended the meeting on 15 March
2016. The omission of the requirement that attendance, participation in and adherence to the rules be at the direction of a probation officer and to the satisfaction of the probation officer and group facilitator is not so easily explained.
[23] I did not hear detailed argument on the significance of the omission, but it is clear from the evidence of Ms Turner, who is a probation officer and was one of the two facilitators of the meeting on 15 March 2016, that the participation of Mr Barry in the meeting was not to her satisfaction. It is, however, unclear whether her
dissatisfaction is material in light of the omission in the charging document of the requirement that Mr Barry’s participation be to her satisfaction. If it is material, then there may well be an issue as to whether a criminal charge can be sustained just on the subjective assessment of a third person as to the appropriateness of Mr Barry’s behaviour. The case seems, however, to have proceeded on an objective assessment of the appropriateness of Mr Barry’s behaviour at the meeting.
[24] In the oral judgment finding the charge proven, the District Court Judge omitted any reference to rules, finding the charge proven on the basis of Mr Barry’s failure to participate. He stated:
[10] I am satisfied on the evidence of Ms Turner, supported in material respects by Mr Crowther, that Mr Barry has in relation to the terms of his extended supervision order failed to participate without reasonable excuse in a relapse prevention group convened on 15 March 2016 and facilitated by Ms Turner. That being so, the charge is proved.
[25] Again, the omission of any reference to adherence to the rules was obviously because of Ms Turner’s evidence that there were no rules as such, but that there were expectations.
[26] Again, I did not hear detailed argument on the significance of the District Court Judge finding only one of the two requirements specified in the charging document being proved. The charging document alleges that Mr Barry “failed to participate and adhere to the rules of”. It is possible that the word “and” really means “or”, but I did not hear argument on that issue.
[27] Here I note s 17(2) of the Criminal Procedure Act 2011 which requires a charge that is worded in the alternative to be identified as such. The use of the word “and” does not clearly identify that failure to participate and failure to adhere to the rules of were alternatives of which only one needed to be proved.
[28] In the end, Mr Barry was convicted just of failing to participate in the group meeting. The primary and literal meaning of “participate” is, however, to have a part or share in or to take part. Mr Barry did literally participate or take part in the meeting on 15 March 2016, but his participation was thought to be counter- productive. The District Court Judge was of the view that Mr Barry’s concerns
about lack of training of the facilitators and lack of confidentiality were misplaced and could, and should, have been raised elsewhere, not at the group meeting itself.
[29] Ms Turner said that because Mr Barry had been in the group for a long time, she assumed that he knew what was expected of him. Mr Crowther said that the expectation would be that he would be polite and cooperative and if there was a particular direction that the group was to go in, the expectation would be that the participants would go in that direction.
[30] I am of the view that there are two fundamental problems with this approach. First, there is a lack of certainty about what was required of Mr Barry in the meetings and, second, on the primary and literal meaning of “participate”, Mr Barry did participate in the group meeting.
[31] This difficulty was recognised by the District Court Judge himself when in his sentencing remarks he stated:
The particular offending which gave rise to this conviction involved his failure to participate adequately in a programme designed to strategise Mr Barry against further offending and thereby avoid it.
[32] Neither the special condition nor the charging document specifies that Mr Barry’s participation should be adequate. With all due respect to the District Court Judge, I am of the view that assessment of “adequate” participation involves a value judgment which lacks the certainty required for criminal liability.
[33] It is my view that the charge breached s 17(4) of the Criminal Procedure Act
2011 because it did not contain sufficient particulars to fully and fairly inform Mr Barry of the substance of the offence that it was alleged that he had committed. It alleged failure to participate, but did not fully and fairly inform Mr Barry how, and in what way, his participation was inadequate. It also alleged a failure to adhere to the rules of the group when there were no rules to speak of, just expectations, which were not specified in the charging document.
[34] It seems to me to be a reasonably straightforward exercise for the Department to draft a set of rules for participants in such meetings. Guidelines, or rules, are
common for group therapy meetings. The first is often a rule about confidentiality, such as “Anything said between any two or more group members at any time is part of the group and is confidential”. Such a rule may also meet the group’s concerns about the lack of confidentiality.
[35] Other rules may relate to abuse of other members, intimidation or violence, or participation under the influence of alcohol and other drugs. It is, however, inappropriate to have a rule requiring a group member to answer any question or volunteer any information as such a requirement would breach fundamental rights and would, in any event, be counter-productive. It is for the facilitator to encourage members to take risks in sharing and thereby benefit more from the meetings. Sharing of a member’s experiences or thoughts can, however, never be required.
Conclusion
[36] The appeal is allowed on the basis that the charge failed to comply with s 17(4) of the Criminal Procedure Act 2011. It did not contain sufficient particulars to fully and fairly inform Mr Barry of the substance of the offence that it was alleged that he had committed.
[37] Mr Barry’s conviction for an offence under s 107T of the Parole Act 2002 is therefore quashed.
Woolford J
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