Chief Executive Department of Corrections v Milne
[2017] NZHC 2561
•19 October 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2017-409-000109 [2017] NZHC 2561
THE CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS
v
ALLAN JOHN MILNE
Hearing: 19 October 2017 Appearances:
C J Boshier for the Applicant
P Dyhrberg for the RespondentJudgment:
19 October 2017
JUDGMENT OF NATION J
[1] The respondent, Mr Allan John Milne, is 28 years old. In 2013 he was convicted of various sexual offences, including two counts of sexual connection with a young person aged 12-16 years (one of them representative), and a charge of grooming for sex. He was sentenced by Judge Farish to four years and five months’ imprisonment. Because of the effect of earlier offending in 2011 and a first strike warning given in the context of that offending, Mr Milne is currently serving the full term of that sentence without parole.
[2] He is recognised as being at risk of committing further serious offending upon his release.
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v MILNE [2017] NZHC 2561 [19 October 2017]
[3] Accordingly, the Chief Executive of the Department of Corrections (the Department) has applied for an Extended Supervision Order (ESO) under the Parole Act 2002 (the Act),1 in respect of Mr Milne. The Department also seeks an order imposing, as a condition of that ESO, intensive monitoring of Mr Milne for a period of 12 months.2
[4] In a memorandum filed with the Court on 17 October 2017, Mr Milne confirms that he does not oppose either the application for an ESO in general or the condition of intensive monitoring sought to be imposed as part of it.
[5] During the brief hearing of this application, Mr Milne confirmed directly to me that he was consenting to an ESO and he understood what the consequences of that would be.
[6] For the reasons discussed, the order should be made.
The statutory framework
[7] Applications for ESOs are brought under s 107F of the Act.
[8] Mr Milne is currently imprisoned on sexual offending charges which are relevant sexual offences under s107B of the Act. He is therefore an “eligible offender” within the meaning of s 107C of the Act. The application was filed during Mr Milne’s imprisonment. His release date is 2 February 2018.
[9] A report from at least one qualified health assessor must accompany the application for an ESO.3 The Chief Executive has provided a report dated 30 March
2017 from Ms Katrina Beach, a registered clinical psychologist.
[10] Although Mr Milne has consented to this application in its entirety, this Court must still be satisfied that the various elements necessary to make the order have
been established to the requisite level. In particular, the Court must be satisfied that
1 Parole Act 2002, s 107F.
2 Parole Act 2002, s
3 Parole Act 2002, s 107F(2).
Mr Milne poses a high risk of committing a relevant sexual offence following release.
[11] In the context of an application for an ESO, the meaning of “is satisfied” has been adopted from R v Leitch, which discussed the meaning of that term in the context of applications for preventive detention:4
The need to be satisfied calls for the exercise of judgment by the sentencing court…the phrase “is satisfied” means simply “makes up its mind” and is indicative of a state where the court on the evidence comes to a judicial decision. There is no need or justification for adding any adverbial qualification.
The relevant statutory criteria
[12] Section 107IAA(1) of the Act outlines the threshold criteria of which a court must be satisfied before it can make a finding that the respondent poses the necessary high risk of committing a relevant sexual offence:
(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:
(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
[13] If the Court is satisfied that these criteria are met, it may go on to consider the overarching question in s 107I(2), whether Mr Milne “has, or has had, a pervasive pattern of serious sexual … offending”, and whether there is a “high risk that the
offender will in future commit a relevant sexual offence”.
4 Chief Executive of Department of Corrections v McIntosh HC Christchurch CRI-2004-409-162,
[14] In terms of the criteria which must be present, the focus is primarily backward-looking, in the sense that, where a relevant trait or characteristic is present, the inference is that it remains so, even if apparently latent, unless there is something to suggest that it no longer subsists.5
[15] As directed by s 107F(2A), Ms Beach addresses these factors and overarching considerations in her report.
Section 107IAA(1)(a) – Intense drive, desire, or urge to commit relevant sexual offence
[16] Ms Beach considers that:
Mr Milne has masturbated to objectionable images of young males over an extended period of time, since he was an adolescent. He sexually offended against his first victim for over two years, despite reluctance on the victim’s part. His second sanctioned offending occurred rapidly after the sanctions for his first offending and following a specialist treatment programme for sexual offending (STOP). The latter offending involved increased intrusiveness and escalated much more rapidly than the former offending.
[17] She therefore considers that Mr Milne “has demonstrated he has an intense drive, desire or urge to commit a relevant sexual offence”.
[18] I consider the evidence establishes this element on the part of Mr Milne to the necessary degree.
Section 107IAA(1)(b) – Predilection or proclivity for serious sexual offending
[19] Ms Beach comments:
Mr Milne has accessed child pornography images on the internet for an extensive period of time, and there is no evidence to suggest that he would not do so again. Mr Milne has also chosen to groom and sexually offend against three male victims (two for which he was convicted) who were pre- pubescent when he met them. This occurred in spite of having access to consenting same-age sexual partners. Mr Milne persisted with the sexual offending despite attending an offence-focussed treatment programme and the presence of support people. He has chosen to exit from a second treatment programme for child sex offenders in order to maintain an intimate relationship considered to be inappropriate. This may indicate that receiving
5 Chief Executive of Department of Corrections v Alinizi [2016] NZCA 458, [2016] NZAR 1313 at
treatment focussing on assisting him to desist from future offending against children is not a priority for Mr Milne.
[20] She concludes that, in her opinion, Mr Milne “has the predilection and the
proclivity for serious sexual offending”.
[21] I consider that this criterion is present to the necessary degree in Mr Milne’s
case.
Section 107IAA(1)(c) – Limited self-regulatory capacity
[22] Ms Beach considers that the prolonged pattern of offending by Mr Milne indicates a serious deficit in his capacity for self control as it relates to sexual behaviour, although she notes that in other areas of life self-control does not appear to be diminished. She comments on this criterion as follows:
… Mr Milne engaged in prolonged periods of masturbating to objectionable images of children and fantasies regarding children in order to relieve boredom. These activities occurred whenever he felt the urge. He continued to engage in sexual activity with his first victim despite the victim’s reluctance and Mr Milne’s awareness that it was illegal. This speaks to his limited capacity or willingness to control his behaviour. He was unable or unwilling to desist from further offending following the treatment and sanctions that occurred after his initial offending. Finally, Mr Milne persisted in maintaining an intimate relationship in prison that prevented both him and his intimate partner from completing treatment for child sex offending.
[23] She therefore concludes that:
… whilst Mr Milne’s general ability to regulate himself is adequate, he has shown an inability or a lack of willingness to regulate his sexual behaviour, both in the community by offending, and in the context of offence paralleling behaviours in prison.
[24] I consider that Mr Milne has a sufficiently limited capacity for self- regulation.
Section 107IAA(1)(d)(i) – lack of acceptance of responsibility or remorse
[25] Ms Beach comments on this as follows:
Mr Milne reports that he takes responsibility for the offending. However, he describes factors relating to his victims and support people as being precipitants of the offending behaviour rather than prioritising his own role
in the offending. He describes the relationships between himself and his two major victims as if the victims were equal to him in terms of maturity and power, further demonstrating his deflection of responsibility for his offending. Mr Milne reports that his first sanctions were an insufficient deterrent for him in terms of offending, indicating that he was not internally motivated by remorse to desist from offending … When discussing his offending Mr Milne’s emotional state is not consistent with remorse.
[26] Ms Beach considers that Mr Milne “does not demonstrate remorse that is commensurate with the harm caused by his offending and the publicity for the victims following the offending”.
[27] Having considered Ms Beach’s assessment on this point, I find that Mr Milne displays a sufficient lack of acceptance of responsibility or remorse. However, I go on to discuss the second limb under (1)(d)(ii), in the alternative.
Section 107IAA(1)(d)(ii) – absence of understanding or concern about the impact of offending on victims
[28] Ms Beach comments on this as follows:
Mr Milne does not appear to understand or be concerned with the harm he has caused his victims and their families. He equated the negative outcomes they may have experienced with those he himself experienced after his own episode of sexual harassment…this is indicative of his minimisation of his own victims’ experiences, in that his offending was prolonged in the case of his first victim and physically harmful in the case of his most recent victim. Mr Milne appears to be more focussed on his current intimate relationship, rather than reflecting on the harm he has caused his victims. Mr Milne also did not appear to be concerned that his actions had led to his partner being exited from [Kia Marama Special Treatment Unit], which may greatly prolong his incarceration.
[29] She therefore concludes that:
… Mr Milne does not grasp the full extent of the effects of his offending on his victims’ psychosexual development and general well-being and he does not appear to be concerned about their welfare.
[30] Having considered Ms Beach’s evidence, I consider that Mr Milne’s
presentation also satisfies this second limb of s 107IAA(1)(d).
Pervasive pattern of serious sexual offending
[31] Mr Milne is still a relatively young man, but his history discloses an alarming pattern of sexual offending. In 2011 he was convicted for charges of sexual offending, including three charges of indecent assault on a boy aged 12-16 years and three representative charges of sexual connection with a young person aged 12-16 years. For that offending he was sentenced to seven months’ home detention. Then, in June 2013, within two years of being sentenced for that offending and shortly following the expiration of his post-release conditions, Mr Milne committed the index offending against another 12 year old male victim. That offending took place over two weeks and escalated through oral sex, co-masturbation and penetrative sex. Mr Milne’s attitude to this offending, including his belief that it was consensual, is also troubling. Ms Beach’s report also refers to behaviour, reported by Mr Milne during his treatment programme, where he admitted to viewing internet child pornography since 2005, when he was 16 years old. Treatment programmes provided during his incarceration appear to have been of dubious benefit and efficacy to Mr Milne.
[32] I am satisfied that Mr Milne’s history discloses a pervasive pattern of serious
sexual offending.
High risk of future sexual offending
[33] Mr Milne’s static risk was assessed using the Automated Sexual Recidivism
Scale (ASRS). That tool scored Mr Milne as being in the “medium high” category.6
He was also assessed using the Violence Risk Scale: Sexual Offender version (VRS:SO) in September 2016. That assessment placed Mr Milne in the “high risk” category. Finally, Mr Milne was assessed for the presence of psychopathy or psychopathic traits using the Psychopathy Checklist: Screening Version (PCL:SV) tool. Ms Beach considers that his score for “Factor 1” attributes (related to interpersonal and affective deficits) is “well above the average score found for New
Zealand offenders” and “indicates a high probability for him to re-offend more
6 Ms Beach refers to the literature which suggests that offenders in that category are reconvicted for sexual offending at a rate of 24%, compared to the average rate of sexual recidivism of 13%.
rapidly than other offenders, and to be more likely to commit harmful offences than
other offenders are”.
[34] Ms Beach considers that, apart from the two treatment programmes undertaken by Mr Milne, and which may have imparted to him some intellectual understanding of his offence pathway, there are no protective factors.
[35] Ms Beach therefore characterises Mr Milne’s overall risk in the following
terms:
… there is a high risk that Mr Milne will engage in relevant offending within
10 years of release. Should Mr Milne sexually re-offend, it is likely to involve a sexually immature, either pre-pubescent or pubescent male, most likely within the age range of nine years to 14 years…Offending is likely to occur with any male in the preferred age range with whom Mr Milne can be in direct contact and whom he can then isolate from protective adults. The offending is likely to be accompanied by rigorous efforts by Milne to influence others to allow him contact with the victim.
[36] Ms Beach also refers to the dynamic variables which may tend to indicate that the overall risk is increasing:
Signs that Mr Milne’s risk is increasing include him resuming viewing objectionable images of children on the internet (also considered sexual offending), engaging in activities that are often attended by children, befriending people who have dependant male children, and evidence that he is having direct contract with male children.
[37] Having considered the totality of the evidence, I consider that the test in s
107I(2) is met, namely that Mr Milne has exhibited a pervasive pattern of sexual offending and there is a high risk that he will in future commit a relevant sexual offence.
Conclusion
[38] The psychologist’s report refers to various issues that arose in the past which meant that Mr Milne did not obtain the benefit he could have from treatment programmes designed to address the causes of his offending and the way he puts himself and others at risk. Despite this, during the hearing, Ms Beach confirmed that it is likely Mr Milne will have the opportunity to participate in a programme such as a STOP programme on his release from prison provided he is receptive to that and
demonstrates that he is likely to benefit from the programme. If he does make progress in addressing the causes of his offending through such a programme, it is also possible the Department will ensure he receives further assistance from psychological counselling on a one-to-one basis. Mr Milne confirmed to me that he intends to take advantage of such opportunities and that he appreciates he must do so to reduce the extent to which he puts himself and others at risk.
[39] I have considered the relevant statutory criteria in light of the evidence provided with the Department’s application, in particular the evidence of Ms Beach. Overall, I consider that it is open to this Court to impose the ESO sought. I am mindful that the purpose of the order is for protection of the community and it is not punitive in nature. I have considered the term of the order in light of the risk and seriousness of harm which Mr Milne currently poses and is likely to continue to do
so.7
[40] Further, I consider that the order should be for the term sought, namely 10 years. There is some suggestion from Mr Milne, notwithstanding his overall consent, that Ms Beach’s evidence is “somewhat light” in clarifying this point. However, I consider that the evidence, as a whole, suggests that she considers a 10 year term to be suitable, and I consider that a 10 year term is, in any event, appropriate.
Disposition
[41] The Court grants the order sought. Mr Allan John Milne is to be subject to an Extended Supervision Order for a duration of 10 years, commencing from the statutory release date. The Court also imposes, as a condition of that order, intensive monitoring for a period of 12 months.
Solicitors:
Raymond Donnelly & Co., Christchurch
Peter Dyhrberg, Barrister, Christchurch.
7 Section 107I(5).
1