Chief Executive, Department of Corrections v Alinizi
[2016] NZHC 1693
•25 July 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000367 [2016] NZHC 1693
BETWEEN THE CHIEF EXECUTIVE,
DEPARTMENT OF CORRECTIONS Applicant
AND
ALI ALINIZI Respondent
Hearing: 23 June 2016. (Submissions: 8 and 14 July 2016) Appearances:
K E Hogan for Applicant
P H H Tomlinson for RespondentJudgment:
25 July 2016
JUDGMENT OF GILBERT J
This judgment is delivered by me on 25 July 2016 at 3 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Ronayne Hollister-Jones, Tauranga
Peter Tomlinson, Auckland
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v ALINIZI [2016] NZHC 1693 [25 July 2016]
Introduction
[1] The Chief Executive of the Department of Corrections applies for an extended supervision order on the grounds that Mr Alinizi has had a pervasive pattern of serious sexual offending and there is a high risk that he will in future commit a relevant sexual offence.1 Before the Court can make such an order, it must be satisfied that Mr Alinizi displays an intense drive, desire, or urge to commit a relevant sexual offence in terms of s 107IAA(1)(a) of the Parole Act 2002. This is
the critical issue for determination in this case. While there is no doubt that Mr Alinizi displayed such a drive, desire or urge in 2005 when he sexually offended, an extended supervision order cannot be made unless he displays these characteristics now.
[2] There is also an issue about whether Mr Alinizi has a predilection or proclivity for serious sexual offending in terms of s 107IAA(1)(b). Mr Tomlinson acknowledges that Mr Alinizi had such a predilection or proclivity 11 years ago but submits that there is nothing to indicate that Mr Alinizi has these traits now.
Background
Family background
[3] Mr Alinizi, who will turn 32 tomorrow, came to New Zealand with his father and stepmother as an Iraqi refugee when he was nine years old.2 Mr Alinizi was witness to graphic and sadistic violence perpetrated by his father and other male family members in Iraq when he was a child. Mr Alinizi’s mother was killed by his uncle during an argument. Mr Alinizi reports having been sexually abused by a male relative when he was a child.
[4] Some time after his arrival in New Zealand, Mr Alinizi’s father and stepmother separated because of his father’s violent behaviour. His stepmother then
1 Parole Act 2002, s 107I(2).
2 Dr Juanita Smith, a clinical psychologist who prepared a health assessor’s report for the purposes of this application, states that Mr Alinizi states that he was nine years of age when he came to New Zealand. However, Winkelmann J stated when sentencing Mr Alinizi on
31 October 2013 that he came to New Zealand when he was six (R v Alinizi [2013] NZHC 2876 at [6]).
took Mr Alinizi and his sisters to a refuge. Mr Alinizi spent a number of years, until he turned 18, in various foster homes under the care of Child Youth and Family Services. Mr Alinizi acknowledges that during this time he displayed antisocial behaviour and formed poor peer associations.
Sexual offending – 2005
[5] Mr Alinizi was found guilty by a jury of sexual violation by rape and kidnapping of a 15 year old female with whom he had been in a sexual relationship for a few months. It appears from the sentencing notes that the kidnapping charge arose as a result of Mr Alinizi chasing the victim down the road after she left the house and forcing her to return to his bedroom where he raped her. This offending, which Mr Alinizi continues to deny, occurred in August 2005 when he was aged 21. Mr Alinizi was sentenced by Judge Robinson on 23 January 2007 to eight years’ imprisonment on the sexual violation by rape charge and to a concurrent sentence of
three years’ imprisonment for the kidnapping.3
[6] Mr Alinizi reports that at the time of this offending he regularly abused alcohol, cannabis and methamphetamine and was sexually compulsive. He says that he had a large number of sexual partners and had sex on a daily basis.
[7] While Mr Alinizi was in prison, offending against a previous partner’s nine year old daughter came to light. This offending occurred in February 2005, when Mr Alinizi was aged 20. He was found guilty by a jury on two charges of doing an indecent act on a girl under the age of 12 years and sentenced by Winkelmann J to two years’ imprisonment to be served cumulatively on the sentence of eight years
imposed by Judge Robinson.4
[8] The circumstances of this offending, which Mr Alinizi also continues to deny, are described in Winkelmann J’s sentencing notes. Mr Alinizi was in an on and off relationship with the victim’s mother and would occasionally stay at her house. One night, after the victim had fallen asleep on the couch, Mr Alinizi pulled her pants
down and rubbed his penis on her back and between her buttocks and legs.
3 R v Alinizi DC Auckland CRI-2005-090-006673, 23 January 2007.
4 R v Alinizi [2013] NZHC 2876.
Mr Alinizi continued even though the victim asked him to stop and was crying. On the second occasion, while the victim’s mother was out, Mr Alinizi pushed the victim onto her hands and knees on the floor, pulled her shorts down and rubbed his penis between her buttocks until he ejaculated.
Conduct while in prison
[9] Mr Alinizi was in prison until 16 January 2016. During this time he was involved in 12 incidents which included racial abuse, possession of contraband and fist fighting with other prisoners, mainly during sports games. The last of these incidents was in January 2013.
[10] Mr Alinizi returned one positive drug test for cannabis, in 2009. The other
11 drugs tests while he was in prison were all negative.
[11] There were no reported incidents of Mr Alinizi acting inappropriately in a sexual way while in prison. There is also no evidence that he displayed inappropriate sexual attitudes, including towards female prison staff, at any time during the course of his lengthy term of imprisonment.
[12] Because of his continued denial of sexual offending, Mr Alinizi was considered unsuitable for participation in sexual offender treatment programmes and he has accordingly not received any treatment that might mitigate the risk of him offending in this way in future.
Conduct since release from prison
[13] Since his release from prison in January 2016, Mr Alinizi has been subject to close supervision and has reported to his probation officer weekly. There have been no reports of any issues with Mr Alinizi’s behaviour since he was released from prison. His release conditions are due to expire on 29 September 2016.
[14] Mr Alinizi currently lives with his older sister in Wellington. She and another older sister are able to provide social and emotional support for Mr Alinizi. He says that he no longer drinks alcohol and is working on his fitness and pursuing his
interest in mixed martial arts. His goal is to start his own fitness business. The Probation Service report that they have not seen any evidence to suggest that Mr Alinizi has consumed alcohol or used illicit drugs since his release.
Statutory tests
[15] Parliament has used different tenses and terminology in defining the statutory tests to be applied when determining whether an extended supervision order can be made: “has had”; “has”; and “displays”. These important differences must be respected when considering whether there is jurisdiction to make an extended supervision order in a particular case.
[16] The Chief Executive’s application is based on the risk that Mr Alinizi will in future commit a relevant sexual offence. The Court may make an extended supervision order in these circumstances if it is satisfied, having considered the matters addressed in the health assessor’s report as set out in s 107F(2A), that the offender “has, or has had, a pervasive pattern of serious sexual or violent offending” and “there is a high risk that the offender will in future commit a relevant sexual
offence”.5 “Relevant sexual offence” is defined in s 107B(2) and includes the
offences committed by Mr Alinizi in 2005 of sexual violation and sexual conduct with a child under 12.
[17] The Court may only determine that there is a high risk that an eligible offender will commit a relevant sexual offence if it is satisfied of the matters stipulated in s 107IAA. The Court has no jurisdiction to make an extended jurisdiction order unless it is satisfied that each of these four matters exists at the time the order is made:
197IAA 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
5 Parole Act 2002, s 107I(2).
(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.
(Emphasis added)
[18] Ms Hogan referred to the decision of Venning J in Chief Executive of the Department of Corrections v Wilson in which His Honour stated that “the urge or desire need not be presently manifested”.6 That case is distinguishable because it concerned an application for an extended supervision order based on the risk that Mr Wilson would commit serious violent offences in future. The test in those circumstances is set out in s 107IAA(2) and is different to the test based on the risk
of sexual offending set out in s 107IAA(1). There is no requirement under subsection (2) for the offender to “display” an intense drive, desire or urge to commit acts of violence.
[19] Ms Hogan also referred to Chief Executive of the Department of Corrections v Rimene.7 That case does not assist because it does not discuss the “displays” requirement. It did not need to because there was evidence that Mr Rimene’s drive, desire or urge remained current.
[20] The “displays” issue was also not specifically addressed by Heath J in Chief Executive of the Department of Corrections v Wrigley, another decision referred to by Ms Hogan.8 The Judge left out the word “displays” when reciting the criterion under s 107IAA(1)(a) and did not address it in his analysis.9
[21] I respectfully agree with Wylie J’s observations in the Chief Executive, Department of Corrections v Martin:10
6 Chief Executive of the Department of Corrections v CJW [2016] NZHC 1082 at [33].
7 Chief Executive of the Department of Corrections v Rimene [2015] NZHC 2721.
8 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712.
9 At [40]-[43].
10 Chief Executive, Department of Corrections v Martin [2016] NZHC 1060.
[37] Pursuant to s 107AA(1)(a), I am required to be satisfied that Mr Martin “displays an intense drive, desire or urge to commit a relevant sexual offence”.
[38] The sub-section uses the present tense – “displays”. What is required is an assessment as at the date of the hearing for the extended supervision order, informed by what has occurred in the past, in an endeavour to anticipate what might happen in the future. The statutory language – “intense drive, desire or urge” – is strong. It conveys a sense of immediacy. What is in issue is whether or not the offender displays an intense drive, desire or urge as at the date of the hearing, and not what drive, desire or urge he or she displayed in the past.
Does Mr Alinizi presently display an intense drive, desire, or urge to commit a relevant sexual offence?
[22] An application for an extended supervision order must be accompanied by a report from a health assessor as defined in s 4 of the Sentencing Act 2002. The Chief Executive’s application was initially supported by a report dated 29 July 2015 from Dr Juanita Smith, a clinical psychologist. Dr Smith provided a further report dated 20 June 2016 and gave evidence at the hearing to assist the Court.
[23] Dr Smith concluded her initial report as follows:
[Mr Alinizi] does not present with an intense drive, desire or urge, or extreme aggressive volatility or persistent harbouring of vengeful intentions to commit a violent offence.
(Emphasis added)
[24] This does not satisfy the criterion in s 107IAA(1)(a). On the contrary, it is an express statement that this criterion was not satisfied at that time.
[25] In her updated report dated 20 June 2016, Dr Smith concluded:
In summary, Mr Alinizi’s risk of further relevant sexual re-offending while in the community is considered high. At the time of his offending, he demonstrated a strong desire and drive to sexually offend against his victims. He continues to present with a complete denial of his sexual offending, lack of remorse or responsibility for his offending, reduced self-regulation, a failure to enter into relevant treatment or engage in personal risk management to avoid high risk situations for future sexual offending.
[26] The first sentence expresses a conclusion about risk but does not address the mandatory statutory criteria that must be satisfied before such a conclusion can be reached. The second sentence is addressed to the first mandatory criterion, set out in
s 107IAA(1)(a). Significantly, Dr Smith confines her observation regarding this to the time of Mr Alinizi’s offending 11 years ago in 2005 and says nothing about his current presentation, which is the critical issue under the Act. The third sentence does consider Mr Alinizi’s current presentation, but only in relation to the criteria in s 107IAA(1)(c) and (d); it does not address the criterion in subsection (a). None of this is intended in any way as a criticism of Dr Smith. It simply highlights that she is unable to provide any evidence to show that this criterion is satisfied.
[27] Dr Jon Nuth, another clinical psychologist, prepared a report and gave evidence to assist the Court. In his report dated 28 April 2016, Dr Nuth reached the same conclusion as Dr Smith on this issue. Dr Nuth states:
I am unable to ascertain whether Mr Alinizi has an intense drive, desire, or urge to commit a relevant sexual offence.
[28] Both psychologists agree that there is currently no test that can be administered to determine whether someone possesses an intense drive, desire or urge to commit a relevant sexual offence. In these circumstances, psychologists rely on self-report or subsequent behaviour to ascertain whether this criterion is satisfied.
[29] Some offenders do report having an active desire of this sort but Dr Smith says that it is quite rare for people to talk about this in detail. Given that Mr Alinizi maintains his denial of the offending in 2005, she is not surprised that he did not report to having such an intense drive, desire or urge currently.
[30] As noted, Mr Alinizi has not displayed any behaviour since 2005 indicative of him having an intense drive, desire or urge to commit a relevant sexual offence. However, as Dr Smith said in evidence, this could be explained by the fact that Mr Alinizi was in a highly structured prison environment and had no access to potential victims and has been subject to close supervision by probation since his release. Dr Smith said that it sometimes requires the re-emergence of the conditions under which the sexual offending initially occurred for the intense desire, drive or urge to be reactivated. This has not occurred to date.
[31] The only matter Dr Smith could point to as giving rise to a present concern was a request Mr Alinizi made to Probation for permission to live with an adult female who has a daughter under the age of 16. However, Dr Smith acknowledged that Mr Alinizi had difficulties arranging housing and she could not say that this request indicated that he had an intense drive, desire or urge to commit further sexual offending.
[32] Dr Smith summarised the position in her evidence as follows:11
So what I'm trying to say overall is really in the absence of self report which you wouldn’t expect someone to necessarily give you under these circumstances, you would be wanting to see behaviour that gave you the indication that that desire, drive or urge was there still and that might be picked up by some of these risk tools…
…
… discussing Mr Alinizi’s case in particular, I’ve made it clear in my report that the weighting – my answer to that question is those factors were present at the time of the offending and other than a request to potentially see it as a request to have access to a victim, I don’t have any current evidence that those things are active.
[33] Dr Smith confirmed in cross-examination that there is no evidence that Mr Alinizi currently displays an intense drive, desire or urge to commit a relevant sexual offence:12
MR TOMLINSON:
Q. We don’t have any evidence at the moment of an intense drive,
desire or urge to commit a relevant sexual offence, correct?
DR SMITH: A. Yes.
[34] Dr Nuth reported that Mr Alinizi did not appear to make any concerted effort to impression-manage or give a positive perspective during the course of his interviews. In his evidence, Dr Nuth confirmed Dr Smith’s view; he too was unable to say that Mr Alinizi currently displays an intense drive, desire or urge to commit a
relevant sexual offence:13
11 Notes of Evidence page 16, lines 15-20 and page 16, line 33 to page 17, line 3.
12 Page 31, lines 2-5.
13 Page 35, lines 22-27.
MR TOMLINSON:
Q. With all the tests you’ve looked at in regard to Mr Alinizi, your conclusion is that you’re unable to ascertain whether he has that intense drive as discussed. Is that correct?
DR NUTH:
A. Yes. I felt I couldn’t give an opinion with any strong degree of
confidence.
[35] It can be seen that there is no contest in the evidence. Both psychologists agree that Mr Alinizi does not currently display an intense drive, desire, or urge to commit a relevant sexual offence. There is no evidence that he has done so since he offended in 2005. It follows that one of the statutory prerequisites for an extended supervision order is not met. Accordingly, the Court has no jurisdiction to make an extended supervision order and the application must be dismissed.
Result
[36] The application for an extended supervision order is dismissed.
M A Gilbert J
3
1