Chief Executive, Department of Corrections v P
[2017] NZHC 135
•10 February 2017
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF RESPONDENT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2015-485-69 [2017] NZHC 135
BETWEEN CHIEF EXECUTIVE, DEPARTMENT
OF CORRECTIONS Applicant
AND
P Respondent
Hearing: 6 July 2016 and 10 February 2017 Appearances:
J OʼSullivan (6 July 2016) and S Carter (10 February 2017) for
the applicant
M Bott for the respondentJudgment:
10 February 2017
JUDGMENT OF MALLON J
Introduction
[1] In 2003 P pleaded guilty to and was convicted of dishonesty offences.1 He was found guilty following trial and convicted of stupefying (x2),2 stupefying with intent to facilitate the commission of a crime (x6),3 kidnapping (x3),4 sexual
violation by unlawful sexual connection (x4),5 indecent assault (x4);6 and burglary
1 Taking or obtaining a document (x5) Crimes Act 1961, s 229A(a) (now repealed) (maximum penalty seven years imprisonment); using a document (x11), s 229A(b) (now repealed) (maximum penalty seven years imprisonment); theft (x1), s 227(ba) (maximum penalty seven years imprisonment).
2 Section 197 (Maximum penalty five years imprisonment).
3 Section 191(1)(a) (Maximum penalty 14 years imprisonment).
4 Section 209(1)(a) (Maximum penalty 14 years imprisonment).
5 Section 128B(1) (Maximum penalty 20 years imprisonment).
6 Section 135(a) (Maximum penalty seven years imprisonment).
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v P [2017] NZHC 135 [10 February 2017]
(x1).7 His sentence was 13 years imprisonment.8 No minimum period of imprisonment was imposed.
[2] In April 2015 P was released from prison. His standard release conditions expired on 21 October 2015, and his special release conditions expired on 24
October 2015.
[3] On 22 October 2015 P was made subject to an Interim Supervision Order pending determination of the Chief Executive’s application for an Extended Supervision Order (ESO). He was also granted interim name suppression.
[4] The matter came back before the Court on a number of occasions, most recently, prior to today’s hearing, on 6 July 2016 when the hearing on the Chief Executive’s opposed application for an ESO was required to be adjourned part- heard. For various reasons the adjourned hearing was not able to resume until this morning. By this morning the position had been reached whereby the parties consented to an ESO as follows:
(a) An ESO is made for a period of five years commencing 10 February
2017.
(b) The ESO is subject to the following special conditions:
(i)If directed, to attend a psychological assessment and attend and complete any treatment/counselling as recommended by the psychological assessment to the satisfaction of your Probation Officer and treatment provider.
(ii)To reside at an address approved by the Probation Officer and not to move from that address without the prior written
approval of a Probation Officer.
7 Section 241(a) (Maximum penalty 10 years imprisonment).
8 He was sentenced by the trial judge to 17 years but this was reduced on appeal to 13 years.
(iii)To remain at your approved address between the hours of 9 pm and 6 am and to comply with all the requirements of partial residential restrictions.
(iv)Not to undertake any form of vocational training or employment, paid or unpaid, without the prior written approval of the Probation Officer.
(v)Not to possess or consume alcohol, illicit drugs or prescription drugs without the written approval of a Probation Officer.
(vi)To not own, possess or drive any motor vehicle without the prior written approval of a Probation Officer.
(vii)Not to enter any public libraries, pharmacies, tourist information centres, backpackers or any other place identified in writing by a Probation Officer without the prior written approval of a Probation Officer.
(viii)To comply with the requirements of electronic monitoring, and provide access to the approved residence to the Probation Officer and representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment as directed by the Probation Officer.
(ix) To submit to electronic monitoring in the form of Global Positioning Systems (GPS) technology as directed by a Probation Officer in order to monitor your compliance with any condition(s) relating to your whereabouts.
(x) Not to access the internet and social media, including but not limited to Facebook, Twitter and NZ Dating without the prior written approval of your Probation Officer.
(xi) Not to use or possess any cell phone or device capable of accessing the internet without the prior written approval of a Probation Officer and to surrender any device or cell phone in your possession to a Probation Officer or their agent if directed to do so by a Probation Officer.
(xii) Not to enter into an intimate relationship without the prior written approval of a Probation Officer.
(c) These special conditions apply for three months from 10 February
2017 or, if an application is made to the Parole Board within three months, until the Parole Board determines the application.
[5] I was satisfied an ESO on those terms was appropriate. At the conclusion of the hearing I made an order accordingly. I set out my reasons below.
[6] Name suppression in relation to this proceeding was also sought. The Chief Executive neither consented to nor opposed the application. A member of the media was present but did not wish to advance submissions on the matter. I advised the parties I was sympathetic to the application and therefore likely to grant it, but needed to consider the matter before I could determine this issue. Having considered the matter further I am satisfied it is appropriate to order name suppression in relation to this proceeding. I set out below my reasons for this decision.
The offending
[7] P befriended a number of Asian women, for whom English was their second language, who were holidaying or studying English in New Zealand. He gained their trust in various ways and then P put Diazepam in their drinks. Eight women were drugged in this way. P then stole their ATM bank cards, withdrew substantial amounts of money from their bank accounts, and then indecently assaulted or sexually violated them. The offending occurred between October 2001 and April
2002. It was escalating at the end of that period.
[8] P was sentenced in the High Court on 14 April 2003. An appeal against conviction and sentence was heard in the Court of Appeal on 17 September 2003 and that court’s decision was given on 9 October 2003.9 On 15 July 2004 the Supreme Court refused to grant leave to hear the appeal.
Personal circumstances
[9] P is 50 years old. He was born and raised in Iran. He fled Iran and arrived in New Zealand in the early 1990s. He achieved refugee status in this country and subsequently gained permanent residency. He has no family in New Zealand and no close ties with the local Iranian community. He had no previous convictions prior to this offending. Enquiries were made to determine whether P had convictions in Australia or Iran. He has no recorded convictions in either of those countries.
[10] P’s behaviour in prison was unremarkable. He does not appear to have been the subject of incident reports or charged with misconduct. He constructively engaged in a variety of employment roles and achieved a number of unit standards in horticulture. P continues to deny the sexual offending. He has not engaged in any rehabilitative treatment for it.
[11] For the purposes of the ESO application Michelle Proctor, a clinical psychologist, interviewed P and assessed him on using actuarial tools and clinical judgment. On the ASRS P was in the medium-low category, on the STABLE-2007 he was in the high risk group, on the VRS-SO he was in the high risk category, on the PCL:SV and PDS he was above average. Ms Proctor’s overall conclusion was that there is a high risk of P committing a further relevant offence while in the community. She considered he would have difficulty with ongoing mitigation of his risk of re-offending without external support and a robust safety plan.
[12] David Riley, a clinical psychologist instructed on behalf of P, reviewed Ms
Proctor’s assessment. He agreed with the medium-low assessment on the ASRS but
considers P’s risk was moderate, rather than high, on the STABLE-2007. He
9 The conviction appeal succeeded in respect of one victim but was otherwise dismissed. The sentence appeal was successful with P’s sentence being reduced from 17 to 13 years imprisonment.
considered on these two assessments that overall P’s risk was moderate-low. He considered it was unnecessary to use the further tools employed by Ms Proctor but did not disagree with her scores, nor the interpretations and inferences she had drawn from them. He considered P’s behaviour in prison and his age were factors in his favour. He considered that if an ESO were to be imposed it would be necessary to manage him using support and safety structures.
[13] P has been subject to an Interim Supervision Order with restrictive special conditions since 22 October 2015. His compliance with those conditions has been good. He has been living in supportive accommodation. With the ESO now in place he will be moving to rental accommodation. The period of P’s interim ESO, P’s good compliance to date and his willingness to consent to an ESO led the Chief Executive to conclude that five years, rather than the 10 years previously sought and to withdraw the application for intensive supervision.
The statutory test
[14] The purpose of an ESO is to protect the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.10 P is an eligible offender for an
ESO.11 The application has been properly brought and is accompanied by the
necessary report.12 The Court must be satisfied, having considered the relevant matters in the health assessor’s report, that the offender has, or has had, a pervasive pattern of serious sexual offending and there is a high risk that the offender will in future commit a relevant sexual offence.13
[15] The Court must be satisfied of certain matters when assessing the risk of committing a relevant sexual offence. They are as follows:
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—
10 Parole Act 2002, s 107I(1).
11 Section 107C, 107B(2) and (2A).
12 Section 107F.
13 Section 107I(2).
(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.
[16] The term of the order must reflect the minimum period required for the purposes of ensuring the safety of the community in light of the risk posed by the offender, the seriousness of potential harm that might be caused to victims, and the likely duration of the risk.14 An ESO may not exceed beyond a period of 10 years.15
The provisions of such orders include standard conditions set out in s107JA of the
Parole Act, as well as any further special conditions later imposed by the New
Zealand Parole Board under s 107K.16
[17] As to P’s risk I take into account Ms Proctor’s view that, given the repetitive offending against multiple victims, which at its peak involved offending against three women in three days, an intense desire of P to offend can be inferred. P has a strong proclivity for serious sexual offending as shown by his use of sedatives on women he was already in a relationship with, by sexual offending when non- offending sexual activity was available to him, and by his continued denial of the offending. His pattern of offending shows that at the time P was unmotivated to control his ongoing drive in offending behaviour. P has continued to deny any sexual offending. P did, however, report that he realised his actions were selfish and self-centred and would have an emotional impact on his victims. P’s risk of reoffending is considered to be high in light of the various tools used by Ms Proctor
and her clinical judgment.
14 Section 107I(5).
15 Section 107I(4).
16 Sections 107J.
[18] I am satisfied the statutory test is met. P has a high risk of sexual offending against adult women, particularly vulnerable women who are isolated from their support networks and with whom he can readily build trust.
[19] In a number of cases the courts have determined that the minimum required for the purposes of community safety was less than the 10 year maximum.17 From a review of the cases I consider the appropriate term of an ESO in this case would have been up to seven years. However taking into account that P has been on an Interim Supervision Order for some time, his good compliance to date and his consent to the ESO I am satisfied five years is the appropriate term. A shorter term, as proposed by his counsel this morning, is not appropriate in my view.
Name suppression
[20] Whether P should have name suppression is governed by s 200 of the Criminal Procedure Act 2011.18 This is explained in Adams on Criminal Law as follows:19
Subsection (1) applies the name suppression provisions of the Criminal Procedure Act 2011 to applications for extended supervision orders. A respondent who seeks name suppression must therefore meet the criteria in s 200(2) of that Act. In Fagan v Serious Fraud Office [2013] NZCA 367 at [9] and Robertson v R [2015] NZCA 7 at [39]-[41] the Court of Appeal held that the judge must first consider whether any of the threshold grounds listed in s 200(2) have been established. Only if one or more of the threshold grounds is established does the judge move to consider whether, as a discretionary matter, the order should be made, taking into account such factors as the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender. Publication is the norm and the threshold for name suppression is high: see Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, (2000) 18 CRNZ 55 (CA) at [44]. Se CJW v Chief Executive of Department of Corrections [2016] NZHC 469 at [6]-
17 See for example McDonnell v Chief Executive of the Department of Corrections [2009] NZCA
352 (nine years); Poutawa v Chief Executive of the Department of Corrections [2007] NZCA
206 (seven years); W-J v Chief Executive of the Department of Corrections CA172/05, 9
November 2005 (seven years); Chief Executive of the Department of Corrections v Rimene HC Wellington CRI-2004-485-174, 8 March 2005 (eight years six months); Chief Executive of the Department of Corrections v Peterson HC Auckland CRI-2007-404-398, 24 April 2008 (eight years); Department of Corrections v Kingi HC Wanganui CRI-2007-488-14, 12 February 2008 (seven years six months); Chief Executive of the Department of Corrections v Waitere HC Wellington CRI-2004-485-181, 13 December 2005 (seven years); Chief Executive of the Department of Corrections v Livingstone [2014] NZHC 138 (seven years).
18 Parole Act 2002, s 107G(10).
19 Simon France (ed) Adams on Criminal Law at [PA107G.01].
[10], and generally, [CPA200.01]-[CPA200.12] in Adams on Criminal Law –
Procedure.
[21] Name suppression is sought on the basis that publication of P’s name and the prospect of vigilante action will endanger his rehabilitation, and that it is in the interests of public safety that he is able to rehabilitate successfully. This is said to meet the extreme hardship requirement and to outweigh the open justice considerations.
[22] In support of the application P relies on Mr Riley’s evidence. P will be domiciled in an area where many of his neighbours are unemployed and possibly have criminal convictions and gang connections. Mr Riley says that publication of P’s name could result in negative reactions and intimidation with which P would have significant difficulty in coping. He considers it is extremely important that the restrictions on P’s living, social and vocational activities are reasonable, allowing P the opportunity to train for or engage in remunerative employment and to develop pro-social and non-criminal associations.
[23] P does not have name suppression in relation to his convictions. If P is granted name suppression in respect of this present proceeding it will mean only that the fact that he is now subject to an ESO will not be published. Publication of the fact that he is subject to an ESO may be said in some ways to advance public safety. On the other hand the point of the ESO is to ensure P is supervised to protect the public and manage his risk. The supervision in this case involves extensive special conditions to manage that risk. The public safety considerations are met by the order and the conditions. P has had name suppression during the Interim Supervision Order and there have been no issues. The Chief Executive does not oppose suppression in this case and therefore, I infer, does not regard publication of P’s name as necessary for public safety. Publication of the fact that P is subject to an ESO risks jeopardising his rehabilitation which in turn would be contrary to the
public interest. Rehabilitation efforts should be given a real chance to succeed.20
20 The circumstances in this case are more similar to that of Chief Executive of the Department of Corrections v JAJ HC Wellington CRI-2009-485-100, 9 November 2009, than Chief Executive of the Department of Corrections v CJW [2016] NZHC 1082.
[24] I have therefore concluded that publication of P’s name and identifying particulars in relation to this ESO proceeding is likely to cause extreme hardship by endangering his rehabilitative efforts which outweighs the countervailing considerations, and that it is appropriate that suppression be granted. I order accordingly.
Mallon J
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