Chief Executive, Department of Corrections v Campbell

[2018] NZHC 1280

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2016-409-000148 [2018] NZHC 1280

THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

v

IVAN ANDREW CAMPBELL

Hearing:	31 May 2018
Appearances:	C J Boshier for the Applicant M Starling for the Respondent
Judgment:	1 June 2018

JUDGMENT OF NATION J

AS TO REASONS FOR MAKING OF ESO

Introduction

[1]                 On 28 August 2001, the respondent, Mr Ivan Campbell, was sentenced in the High Court on charges of sexual violation involving complainants under the age of 16 years to a total of 14 years’ imprisonment.1 On 19 June 2014, Panckhurst J imposed an Extended Supervision Order (ESO) for 10 years pursuant to s 107I(2) of the Parole Act 2002 (the Act).2

1      R v Campbell HC Auckland T002756, 28 August 2001.

2      Chief Executive of the Department of Corrections v Campbell [2014] NZHC 1388.

DEPARTMENT OF CORRECTIONS v CAMPBELL [2018] NZHC 1280 [1 June 2018]

[2]                 In December 2016, the Chief Executive of the Department of Corrections (the Chief Executive) applied for a Public Protection Order (PPO) with respect to the respondent. An Interim Detention Order (IDO) was also sought. In the alternative, an application for an ESO together with intensive monitoring was also filed. The IDO was not granted. However, Mr Campbell gave the Court an undertaking that he would comply with 24/7 person-to-person monitoring until the PPO was determined.

[3]                 The application for a PPO remained before the Court until 31 May 2018. This was so that an interim order could be put in place with Mr Campbell subject to the conditions attached to that interim order. The application for a PPO was formally withdrawn on 31 May 2018. The application before the Court on 31 May 2018 was thus for an ESO.

Application

[4]                 The Chief Executive applied for an ESO for a period of 10 years to be imposed on the respondent pursuant to s 107F of the Act. The application was sought on the grounds that the respondent has or had a pervasive pattern of serious sexual offending and there is a high risk the respondent will, in future, commit a relevant sexual offence after he ceases to be an eligible offender.3 The reason an application was made for a second ESO was that the original ESO imposed by Panckhurst J could not provide for intensive monitoring of Mr Campbell. The Act was amended in December 20144 to provide for such a special condition.5

[5]                 By his counsel, Mr Campbell advised that he did not oppose the making of an ESO with intensive monitoring. I formally made such orders on 31 May 2018. Notwithstanding Mr Campbell’s consent, I must still explain why I was satisfied that the statutory criteria for making such an order had been met.

3      Parole Act 2002, s 107I(2).

4      Parole (Extended Supervision Orders) Amendment Act 2014, s 16.

5      Parole Act 2002, s 107IAB.

Background offending

[6]                 The offending was summarised in the judgment of Panckhurst J.6 His Honour stated that Mr Campbell had convictions for sexual offences which were dealt with at the sentencing in the High Court in 2001.7 Some of the offending dated back to August 1991.

[7]                 The 1991 offending occurred in Auckland. Mr Campbell had taken two boys away for a weekend and coaxed the older boy into various sexual acts, including masturbation, oral sex and anal intercourse.8 Mr Campbell was not charged for some time because he moved to Australia.

[8]                 Mr Campbell was deported back to New Zealand after a prison sentence in Australia in the year 2000.9 In Auckland, he persuaded a 14-year-old boy to come to his residence. He held the boy captive for a week. He subjected the boy to oral and anal sex, as well as significant violence.10

[9]                 Pankhurst J said the health assessor's description of the crimes as being of "a high level of physical and sexual violence, degradation and humiliation" was a mild description of the sexual acts and the level of violence.11

Law

[10]             Under s 107F(1)(b) of the Act, the Chief Executive may apply for an ESO in respect of an eligible offender where the offender is subject to an extended supervision order, at any time before the expiry of the order.

[11]             For an ESO to be made, Mr Campbell must be an “eligible offender” under s 107C of the Act. He has been sentenced for a relevant offence under s 107B(2). As

6      Chief Executive of the Department of Corrections v Campbell [2014] NZHC 1388 at [6].

7      R v Campbell HC Auckland T002756, 28 August 2001.

8      Chief Executive of the Department of Corrections v Campbell [2014] NZHC 1388 at [6].

9 At [9].

10 At [10]. The violence included beatings, being burned with hot wax, being tattooed and subjected to body piercing. Bondage equipment was used, together with chains and, at one point, he was restrained by being locked in a cupboard. He was branded using a hot instrument, causing burns to his lower back.

11 At [12].

he has been sentenced to imprisonment for a relevant offence, is not subject to an indeterminate sentence, and has not ceased to be subject to release conditions, he fulfils the s 107C criteria. As required by s 107F(2), the application made for an ESO was accompanied by an appropriately formatted report by a health assessor, namely Stephen Els.

[12]             The purpose of an ESO is to protect members of the community from offenders who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.12 This Court may make an ESO if satisfied that Mr Campbell has, or 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.13 The term of the order must be the minimum period required for the purposes of the safety of the community in light of the level of risk posed by Mr Campbell, the seriousness of the harm that might be caused to victims, and the likely duration of the risk. The term of the order must not exceed 10 years.14

[13]             Section 107IAA provides that the court may determine that there is a high risk Mr Campbell will commit a relevant sexual offence only if it is satisfied that he:15

(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: or

(ii)An absence of understanding for or concern about the impact of his sexual offending on actual or potential victims.

[14]             When deciding whether to impose an ESO, the Court is entitled to take into account any evidence or information that it thinks fit for the purpose of determining the application, whether or not that would be admissible in a court of law.

12     Parole Act 2002, s 107I(1).

13     Parole Act 2002, s 107I(2).

14     Parole Act 2002, s 107I(4).

15     Parole Act 2002, s 107IAA(1).

[15]             When the Chief Executive makes an application under section 107F for an ESO, he or she may at the same time apply to the sentencing court for an order requiring the Board to impose an intensive monitoring condition on the offender.16 An intensive monitoring condition is a condition requiring an offender to submit to being accompanied and monitored, for up to 24 hours a day by a person authorised by the Chief Executive.17

[16]             The order must specify the maximum duration of the intensive monitoring condition, which must be no longer than 12 months. The Court may not make an order under this section in respect of an offender more than once, even if the offender is subject to repeated ESOs.

The Health Assessor’s report

[17]                I had regard to the Health Assessment Report of Stephen Els, the Registered Clinical Psychologist who assessed Mr Campbell. In that report, Mr Els applied each of the criteria in s 107IAA to Mr Campbell:

(a)  Mr Els considered that Mr Campbell demonstrated an intense drive, desire, or urge to commit a relevant sexual offence. He noted that “a number of factors point to Mr Campbell prioritising sexual gratification over any other concerns.” In particular, he had regard to “the level of planning and effort Mr Campbell employed to sexually offend, the sustained nature of the offending once it commenced, and the high level of intrusiveness of the offending.”

(b)  With respect to Mr Campbell’s predilection or proclivity for serious sexual offending, Mr Els noted the consistency in the way he subjected his victims to “degrading, intrusive and sustained deviant sexual activity”. Despite taking place many years apart, Mr Els called the similarities in the grooming process, the victim profile and the activities he subjected the victims to “remarkable”.

16     S 107IAB(1).

17     S 107IAC(2).

(c)  Mr Els was of the view that Mr Campbell shows a poor level of self- regulatory capacity. Mr Els considered Mr Campbell had shown, throughout his lifetime, poor self-regulatory control over his sexual impulses. He considered Mr Campbell did not have a balanced perspective regarding his own self-regulatory capacity or how to effectively manage himself.

(d)  In terms of Mr Campbell's acceptance of responsibility and remorse for past offending, Mr Els noted Mr Campbell has a history of poor acceptance of responsibility and a related lack of remorse for his past sexual offending.

(e)  Mr Campbell was further said to lack understanding for or concern about the impact of his sexual offending on actual or potential victims. During the assessment, Mr Campbell acknowledged that his violent and intrusive actions would have had a negative impact on his victims. However, given his lack of disclosure in relation to the sexual motives and nature of the offending against the victims, it was considered that he, therefore, had an incomplete understanding of the likely impact his behaviour has had.

(f)  Mr Campbell's high level of monitoring since his release from Prison in May 2014, in the form of an ESO with high levels of individual monitoring, is believed by Mr Els to have played a significant role in a reduction in more recent serious risk concerns. However, this result is more a product of the level of external control on Mr Campbell rather than his internal motivation and drive to manage his risk of reoffending.

[18]             In Mr Els’ opinion, Mr Campbell was at a high risk of reoffending. His conclusion was that Mr Campbell meets all the criteria from s 107IAA of the Act.

Conclusion

[19]             Mr Els did not oppose the ESO being ordered. In light of Mr Els’ conclusions, and on my reading of the evidence before me, I accepted that each matter in s 107IAA was satisfied. Given Mr Campbell has, or 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, I granted an ESO, as sought, for a period of 10 years commencing today.

[20]             I further accepted that the imposition of an intensive monitoring condition for a period of 12 months was appropriate. I held that Mr Campbell must submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the Chief Executive, to undertake person-to- person monitoring. The Parole Board must impose an intensive monitoring condition on Mr Campbell as a special condition.

[21]             I also held that, pending the Parole Board’s imposition of further conditions for the ESO, Mr Campbell was to be subject to the conditions set out in the documents which are attached to this judgment.

Solicitors:

Raymond Donnelly & Co., Christchurch M Starling, Barrister, Christchurch.