C v Rolleston District Prisons Board HC Christchurch A25/01

[2001] NZHC 278

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY A25/01

SEE SUPPRESSION ORDER AT END OF JUDGMENT

BETWEEN C
Appellant

AND ROLLESTON DISTRICT PRISONS BOARD
Respondent

Date of Hearing: 30 March 2001

Judgment Released: 11 April 2001

Counsel: R G Glover for the appellant
C J Lange for the respondent

RESERVED JUDGMENT OF YOUNG J

[1] This is an appeal pursuant to s 107M, Criminal Justice Act 1985 against an order made by a District Prisons Board pursuant to s 107L, Criminal Justice Act recalling the appellant to prison. There is an associated application for leave to mount the appeal out of time.

Background

[2] On 14 October 1997, the appellant was sentenced to five years imprisonment on ten charges of burglary.

[3] On 8 September 1999, he was released on parole.

[4] Between 6 and 8 January 2000, while still on parole, the appellant broke into two residential houses.

[5] On the first occasion the appellant took with him into the house a number of pornographic pictures together with a collection of magazine pictures of young girls and women in their underwear. He also took with him a number of items of women’s underwear and a pair of women’s shoes. He cut out of a family picture which he found at the house an image of an 11-year-old girl who lived in that house. All the material which I have mentioned was then assembled together. The appellant then masturbated. He then departed from the house abandoning the items which I have listed.

[6] The appellant’s behaviour in respect of the second incident was broadly the same as on the first occasion except that he did not cut up any photograph which was in the house.

[7] The appellant was arrested and charged with burglary in respect of each property. He appeared in the District Court on 14 January 2000 and was remanded in custody. He subsequently pleaded guilty to both charges and was eventually sentenced on 9 March 2000 to five and a half years imprisonment. He appealed to the Court of Appeal against sentence and the sentencing Judge’s refusal to grant name suppression.

[8] In the meantime, he was recalled to prison in relation to the 1997 sentence of imprisonment; this pursuant to an order made by the Rolleston District Prisons Board on 27 March 2000.

[9] Once the case reached the Court of Appeal, an issue arose whether the facts alleged in the summary of facts disclosed offences of burglary. The concern in the Court of Appeal was that while there was, undoubtedly, a breaking and entry in each case, it was arguable that there was no intention to commit a crime as the appellant’s plan was “merely to cross-dress and masturbate”.

[10] After this concern was raised, there developed something of a procedural imbroglio which I need not review in this judgment. The upshot of it all was that, in a judgment of the Court of Appeal delivered on 5 December last year, the convictions were set aside and the proceedings were remitted to the District Court.

[11] The current position is that the Crown intends to proceed with the charges of burglary. On the basis of what I was told from the bar, there certainly appears to be a tenable basis for the contention that, the appellant relevantly intended to commit crimes at the times when he broke into the two houses. Alternatively, in respect of the first dwelling, the Crown contends that the appellant was guilty of burglary because having committed an offence inside the house (wilful damage of the photograph) he then broke out.

The statutory framework

[12] In the case of an offender who has been released on parole (as the appellant was in September 1999), the following statutory framework as to recall applies.

[13] First, under s 107I:—

“(3) Subject to subsection (6) of this section, where an offender subject to a determinate sentence is released under this Part of this Act, a probation officer may, at any time not later than 3 months before the sentence expiry date, apply to the Parole Board or a District Prisons Board, as the case may be, for an order that the offender be recalled to a penal institution to continue serving his or her sentence.

. . .

(6) An application may be made under this section where the applicant believes on reasonable grounds that—

. . .

(b) The offender has committed an offence . . .”

[14] Secondly, s 107L provides:—

“(2) The Board may order the recall of an offender if it is satisfied, on the balance of probabilities, that one or more of the grounds in section 107I(6) of this Act have been established.

(3) Without limiting the matters that the Board may consider in determining the application, the Board shall consider the need to protect the public or any person or class of persons from the offender.

(4) An order for the recall of an offender may be made under this section whether or not the offender is in custody relating to a charge, and whether or not the offender is alleged to have—

(a) Breached any of the conditions of his or her release; or

(b) Committed any offence.

(5) On an application under this section, the Board may receive any evidence that it thinks fit, whether or not the evidence would otherwise be admissible in a court of law.”

[15] Thirdly, s 107M provides:—

“(1) Where the Parole Board or a District Prisons Board, as the case may be, has ordered the recall of an offender pursuant to section 107L of this Act, the offender may, within 28 days of the date of the order, or such longer time as the court may on application allow, appeal to the High Court against the making of the order.

(2) Subject to this section, and with any necessary modifications, the provisions of sections 116 to 120, 123, 129, 130, 133, 134, 136, and 143 of the Summary Proceedings Act 1957 shall apply to every appeal under this section as if the determination of the Board appealed against were an order.

(3) The offender shall be detained in custody pending the determination of any appeal under this section and the offender’s sentence shall continue to run during that period.

(4) On hearing an appeal pursuant to this section, the High Court may—

(a) Confirm the order:

(b) Refer the matter back to the Board with a direction to reconsider:

(c) Quash the order and, unless the offender is liable to be detained under any other provision of this Act or any other Act, —

(i) Direct the release of the offender from custody; or

(ii) Direct the release of the offender from custody and refer the offender to the appropriate Board to consider the imposition of release conditions under this Part of this Act:

(d) Make such further or other orders as the case may require.

(5) In the exercise of its powers under this section, the court may receive as evidence any statement, document, information, or matter that the Board would have been entitled to receive at first instance.

(6) The court shall not be bound to allow the appeal on the ground merely of the improper admission or rejection of evidence unless in the opinion of the court a substantial wrong or miscarriage of justice has thereby been occasioned.

(7) Without limiting the matters that the court may consider in determining the appeal, the court shall consider the need to protect the public or any person or class of persons from the offender.

(8) In referring a matter back to the Board under subsection (4)(b) of this section, the court shall —

(a) Advise the Board of its reasons for so doing; and

(b) Give the Board such direction as it thinks just as to any rehearing or to the reconsideration or determination of the whole or any part of the matter.”

Grounds of appeal

[16] The appeal was brought essentially on the basis that “the effect of the Court of Appeal’s decision has been to remove the grounds for [the appellant’s] recall”.

[17] In the course of argument this was developed somewhat.

[18] It is perfectly clear that the appellant did, in fact, commit offences. In respect of the first incident he undoubtedly committed the offence of wilful damage which is a crime pursuant to s 298, Crimes Act. In respect of each incident he would appear to have committed the offence of doing an indecent act with intent to insult or offend (s 126, Crimes Act). I say this because the insult and offence which his actions caused to the occupiers of the houses into which he broke were such obvious and inevitable consequences of his actions that he would appear to have intended such consequences even if the giving of such insult and offence was not his primary purpose (cf Nedrick [1986] 1 WLR 1025). In any event, even if the charges of burglary cannot be made out, it is perfectly clear that the appellant committed, on each occasion, the offence of being unlawfully on property, contrary to s 29, Summary Offences Act.

[19] The effect of ss 107I(6) (b) and 107L (2) is that the appellant was eligible for recall from parole irrespective of whether his behaviour, on either or both the occasions which I have mentioned, involved the commission of the offence of burglary.

[20] In light of those considerations, counsel for the appellant’s argument shifted rather to an invitation to me to remit the issue to the Rolleston District Prisons Board to consider in light of the change in circumstance which has now occurred, namely that the convictions for burglary have been set aside.

Respondent’s argument

[21] The respondent’s argument is that there was jurisdiction to recall the appellant to prison because he has, undoubtedly committed offences in relation to the two premises. Further, it was contended that I need not remit the case to the District Prisons Board because there is no occasion to think that the technical issues which resulted in the convictions for burglary being quashed in the Court of Appeal are material to the considerations which are relevant to whether there should be a recall.

Disposition

[22] I have read carefully all the material which has been made available to me which starts with the pre-sentence report which was produced when the appellant was sentenced in October 1997 and which includes assessments subsequently prepared in relation to his release on parole and the recall application.

[23] I accept that there has been a change in circumstance affecting the appellant given that the Court of Appeal has set aside the appellant’s convictions for the offences which triggered the recall application. I further accept that this means that his situation must be reviewed again either by me or the District Prisons Board.

[24] I was initially inclined to the view that this reconsideration should be by the District Prisons Board. I did consider it appropriate, however, to read all the material on the file. Having done so, I formed the view that the appropriate response to this appeal is reasonably obvious and that I should assume responsibility for addressing all relevant issues myself in this judgment.

[25] The appellant has a very long list of convictions which goes back to 1975. Most, and perhaps all, of his many burglary convictions relate to behaviour which is broadly similar to what happened during the two incidents in January 2000 which are the subject of the current proceedings in the District Court. Running throughout most of his offending have been themes of theft of women’s underwear and burglaries associated with such thefts, cross-dressing activities and masturbation. Although the appellant has only one conviction for an act of violence (a common assault for which he was sentenced in November 1978), it would be overly sanguine to conclude that he poses no physical risk to the people whose houses he burgles. Physical confrontation in respect of such burglaries is an ever-present risk. In any event, his behaviour is immensely distressing for those whom he offends against.

[26] I agree that the less serious an offence committed by an offender on parole, the less likely it is that that offence will be seen as warranting recall, cf the comments of Randerson J in Hart v Parole Board, [1999] 3 NZLR 97 at 99. On the other hand, the seriousness of particular offences has to be assessed in terms which include the offender’s prior pattern of convictions and general history. Whether the appellant’s actions in January 2000 involved the commission of burglaries, strictly so called, is obviously open to question (and will have to be determined in the District Court in the current proceedings). But it is undeniable that his actions in January 2000 were entirely consistent with his pattern of previous offending.

[27] The appellant’s conduct is associated with deeply entrenched personality traits which have not been successfully modified despite very substantial therapeutic efforts. Attempts have been made over many years to address the appellant’s cross-dressing behaviour. More recently, therapeutic intervention has focused on encouraging the appellant to cross-dress in a way which does not involve offending (eg otherwise than in other people’s houses). The events of January 2000 testify to the failure of these attempts. There is no evidence to suggest that further therapeutic intervention, in the foreseeable future, will be effective in terms of significantly reducing the appellant’s propensity to offend.

[28] I understand that there is scope for argument as to the overall seriousness of the appellant’s behaviour and whether that behaviour should be seen as warranting the very long terms of imprisonment which have been, in recent years, meted out to the appellant. I do not, however, see that argument as being of any real moment in the present context. The appropriateness of the sentence which was imposed in October 1997 is now long past challenge. Having been granted parole in September 1999, the appellant committed further offences involving behaviour very similar to that which had led to his imprisonment. On any common sense appreciation of the facts, the appellant has never been well placed to oppose the application for recall.

[29] The scheme and purpose of the relevant legislation is, of course, fundamental to this exercise. There is a clear statutory direction for the board and this Court to:—

“[C]onsider the need to protect the public or any person or class of persons from the offender.”

This direction appears in ss 107L (3) and 107M (7). Once the jurisdiction to recall is established, that is the only mandatory consideration which the Legislature has seen fit to specify. As well, it is fair to regard a release on parole as being a licence subject to good behaviour, see for instance Secretary for Justice v L (1994) 12 CRNZ 454. Encouraging (and not hindering) the rehabilitation of offenders is also fundamental to the scheme. These are plainly not the only considerations which may be material when recall from parole is under consideration. But they seem to me to be the considerations which are of primary significance in this case.

[30] Against that background, I see the salient features of the present situation being as follows:—

1. Whatever the eventual label ascribed by the courts to the appellant’s offending in January 2000, it involved conduct of fundamentally the same kind as had been involved in the offences for which he was sentenced in October 1997 and on many previous occasions.

2. In terms of impact on victims and, indeed, potential danger to victims, it is irrelevant that there may be technical arguments available as to whether the offences which he committed in January 2000 included offences of burglary.

3. Likewise, in terms of assessing his level of compliance with his parole conditions and the extent to which he could fairly be regarded as responding favourably to parole, technical arguments as to whether he committed offences of burglary seem to me to be beside the point.

4. In any event, there is absolutely no reason to suppose that he will not continue to act in the future in the way in which he has in the past, that is in a manner which involves repeated offending. All therapeutic alternatives realistically available have been tried and failed.

[31] In a context where the only mandatory consideration which is required to be taken into account is the need to protect the public, and in the context where there is an extremely high probability of continued offending by the appellant if released to the community, it seems to me that there is no credible answer to the contention that recall is appropriate.

[32] In those circumstances, I extend the time for the filing of the appeal (as I accept that the issues associated with the recall required re-investigation in light of the decision of the Court of Appeal). But I am in no doubt at all that the recall to prison from parole was warranted. Accordingly, the appeal is dismissed.

[33] Because the Court of Appeal has made an interim order suppressing publication of the appellant’s name pending the determination of the charges which are currently outstanding against him, I make a similar order in relation to this appeal, that is that publication of his name is to be suppressed until the current charges against the appellant are heard and determined.