Chief Executive, Department of Corrections v Baird
[2020] NZHC 526
•16 March 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-412-000047
[2020] NZHC 526
BETWEEN CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
ApplicantAND
JORDAN ANDREW BAIRD
Respondent
Hearing: 16 March 2020 Appearances:
C J Boshier for Applicant M Starling for Respondent
Judgment:
16 March 2020
ORAL JUDGMENT OF DUNNINGHAM J
Introduction
[1] The Chief Executive of the Department of Corrections has applied for an extended supervision order with respect to the respondent, Mr Baird, for a period of 10 years. The applicant also applies for intensive monitoring.1 This is an order requiring the Parole Board to impose an intensive monitoring condition on Mr Baird.
[2] When this matter was first called, Mr Starling sought an adjournment so that he could discuss the matter with Mr Baird. The result of those discussions is that Mr Baird now understands what is involved in an extended supervision order, and has been prepared to consent to one being made.
1 Pursuant to s 107IAB of the Parole Act 2002.
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v BAIRD [2020] NZHC 526 [16 March 2020]
[3] The Chief Executive’s application is filed pursuant to s 107F Parole Act 2002 (the Act). That section provides:
107F Chief executive may apply for extended supervision order
(1)The chief executive may apply to the sentencing court for an extended supervision order in respect of an eligible offender,—
(a)where the offender is subject to a sentence of imprisonment, at any time before the later of—
(i)the sentence expiry date of the sentence to which the offender is subject that has the latest sentence expiry date, regardless of whether that sentence is for a relevant offence; and
(ii)the date on which the offender ceases to be subject to any release conditions; or
[4] Mr Baird’s sentence expiry and statutory release date was 7 January 2020 and he is no longer in custody. His release conditions end on 6 July 2020. He is currently subject to an interim supervision order with intensive monitoring which was imposed by Mander J on 13 February 2020. He is currently residing at the Salisbury Street Foundation in Christchurch where he is, I understand, doing well.
The statutory requirements
Eligible offender
[5] An application can only be made in relation to an “eligible offender” as defined in s 107C of the Act:
107C Meaning of eligible offender
(1)In this Part, eligible offender means an offender who—
(a)is not subject to an indeterminate sentence but is a person who has been sentenced to imprisonment for a relevant offence (and that sentence has not been quashed or otherwise set aside) and has not ceased, since his or her latest conviction for a relevant offence (that has not been quashed or otherwise set aside), to be subject to any or all of the following:
(i)a sentence of imprisonment (whether for a relevant offence or otherwise):
(ii)release conditions (whether suspended or not):
(iii)an extended supervision order; or
(b)is a person who—
(i)has arrived in New Zealand within 6 months of ceasing to be subject to any sentence, supervision conditions, or order imposed on the person for a relevant offence by an overseas court; and
(ii)has, since that arrival, been in New Zealand for less than 6 months; and
(iii)resides or intends to reside in New Zealand; or
…
[6] I am satisfied that Mr Baird is an eligible offender. Specifically, on 8 June 2017, he was sentenced in the Invercargill District Court to two years and seven months’ imprisonment in respect of a charge of sexual violation by rape and indecent assault on a child. These convictions are “relevant sexual offences” as defined in s 107B(2). Mr Baird also has previous qualifying convictions for sexual violation by rape and indecent assault on a child for which he was sentenced on 17 June 2015. He is not subject to an indeterminate sentence and the sentences that have been imposed on him have not been quashed or otherwise set aside. He has also not ceased since his last conviction for a relevant offence to be subject to release conditions. For these reasons, as I have said, Mr Baird is an eligible offender for the purposes of s 107C(1).
Grounds for making an extended supervision order
[7] The grounds which must be established before the Court can make an ESO are set out in s 107I. This section provides:
107I Sentencing court may make extended supervision order
(1)The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.
(2)A sentencing court may make an extended supervision order if, following the hearing of an application made under section 107F, the court is satisfied, having considered the matters addressed in the health assessor’s report as set out in section 107F(2A), that—
(a)the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and
(b)either or both of the following apply:
(i)there is a high risk that the offender will in future commit a relevant sexual offence:
(ii)there is a very high risk that the offender will in future commit a relevant violent offence.
(3)To avoid doubt, a sentencing court may make an extended supervision order in relation to an offender who was, at the time the application for the order was made, an eligible offender, even if, by the time the order is made, the offender has ceased to be an eligible offender.
(4)Every extended supervision order must state the term of the order, which may not exceed 10 years.
(5)The term of the order must be the minimum period required for the purposes of the safety of the community in light of—
(a)the level of risk posed by the offender; and
(b)the seriousness of the harm that might be caused to victims; and
(c)the likely duration of the risk.
[8] Every ESO must state the term of the order, which may not exceed 10 years. The term imposed must be the minimum period required for the safety of the community, taking account of:2
(a)the level of risk imposed by the offender in committing a sexual offence against children or young persons;
(b)the seriousness of the harm that might be caused to the victims; and
(c)the likely duration of the risk.
[9] In making an ESO, this Court must explain the reasons why an order is being made and the basis on which the statutory test has been met.3 This is why, although
2 Section 107I(5).
3 R v Peta [2007] NZCA 28.
in this case the order is being consented to, I am giving a brief outline of the reasons why I consider the statutory test is satisfied.
[10] In deciding whether to grant the application, I have had regard to both the requirements of s 107I and to the considerations which were outlined by the Court of Appeal in the case Kiddell v Chief Executive of the Department of Corrections.4
[11] I note that I need to have regard to present or past behaviour and then, separately, to future risk, in deciding whether an ESO ought to be made.
[12] In considering these matters, I have the assistance of the health assessor’s report by Ms Fon to help me judge both whether there is an existing pervasive pattern of serious sexual offending and whether there is a high risk that Mr Baird will in future commit a relevant sexual offence.
Is there a high risk of the offender committing a relevant sexual offence?
[13] In assessing whether or not there is a high risk of committing a relevant sexual offence, and whether the offender exhibits certain risk related traits or behavioural characteristics, I must be satisfied of the matters set out in s 107IAA(1). This provides:
107IAA 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
(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:
4 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171, at [16]-[27].
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
[14]I will now turn to consider each of these factors.
Demonstration of intense drive, desire or urge to commit a relevant sexual offence
[15] Ms Fon concludes that Mr Baird does continue to display an intense drive, desire or urge to commit relevant sexual offending and that he has few internal skills to manage this desire or risk. Not only has he offended against two victims, he has also previously disclosed that he has planned further serious sexual offending against a third victim at the time of his arrest. The report discloses that Mr Baird continues to fantasise about, and masturbate to, imagery of his victims and he becomes sexually aroused even discussing these issues during a formal assessment situation.
[16] Mr Baird acknowledges that from the age of 11, he has fantasised about offending against girls and, despite his engagement in treatment, he continues to display behaviour that reflects an intense drive, desire or urge to commit relevant sexual offences.
The offender’s predilection or proclivity for serious sexual offending
[17] For the same reasons as I am satisfied that Mr Baird demonstrates an intense drive, desire, or urge to commit a relevant sexual offence, I also consider he has a predilection or proclivity for serious sexual offending, and in particular, against girls aged six to 12 years, who fit a particular physical description.
The offender’s self-regulatory capacity
[18] Although Mr Baird has undergone treatment through the adapted programme at Kia Marama, he appeared unable to apply the knowledge and skills he had gained outside of the group context. Ms Fon’s report explained that he did not have an ability to recognise high risk situations for himself and apply what he has learnt to manage those types of situations. She concluded that he demonstrated poor self-regulatory capacity in general and had poor impulse control. He uses aggression and has an inability to tolerate unexpected change without an emotional reaction. He had been
unable to manage his deviant fantasies in prison and he continues to have a strong and high sexual drive which is easily triggered by memories of his victims.
The offender’s acceptance of responsibility and remorse for past offending
[19] Although Mr Baird pleaded guilty to his offending he continues to justify and minimise his actions and he is not considered to demonstrate a genuine understanding of his need to accept responsibility for managing his risk. He is also not considered to hold or express genuine remorse and he makes various comments that are at odds with wanting to avoid further re-offending in the future.
The offender’s understanding for or concern about the impact of his or her sexual offending on actual or potential victims
[20] Ms Fon observes that this area was complicated because of Mr Baird’s intellectual disability. She says that while he has a basic level of understanding that his actions have caused harm, he does not really appreciate the gravity of his actions. She says he cannot fully explain how his victims will fare over the longer term, nor can he reliably adopt their perspective and put himself in their shoes. The fact that he continues to fantasise over sexual offending with his victims undermines the suggestion he has any genuine or real concern for them, and this lack of understanding or concern contributes to his risk of reoffending.
[21] Having regard to these factors, my conclusion is that the risk of Mr Baird committing a relevant sexual offence in the future is high.
[22] This conclusion is supported by Ms Fon’s report. She notes that if he were to continue to maintain the current high level of sexual deviancy, impulsivity and intimacy deficits, then he will be at high risk of engaging in further relevant sexual offending upon release to the community. Such offending may involve force and he is likely to prioritise his own gratification over his victim’s needs. She concludes that Mr Baird has not demonstrated any consistent willingness to moderate his deviant sexual preferences and thus, remains in need of close supervision.
Conclusion
[23] For all these reasons, I am satisfied that Mr Baird has or has had a pervasive pattern of serious sexual offending and that there is also a high risk that he will, in future, commit a relevant sexual offence. I accept that given his intellectual impairment and his inability to apply the knowledge and skills learnt in treatment in his day to day life mean this risk is likely to remain for a significant period of time.
[24] For that reason, I am satisfied that, for the protection of the community, an ESO for 10 years should be imposed under s 107I and I make an order accordingly on the conditions sought, including an intensive monitoring condition on the same terms as the interim ESO.
[25]The ESO is to come into force on today’s date.
Solicitors:
Raymond Donnelly & Co., Christchurch M Starling, Barrister, Christchurch
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