Chief Executive, Department of Corrections v Palmer
[2022] NZHC 137
•4 February 2022
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2021-412-000033
[2022] NZHC 137
THE CHIEF EXECUTIVE,
DEPARTMENT OF CORRECTIONS, WELLINGTON
v
TRACY WILLIAM PALMER
Hearing: 4 February 2022 Appearances:
C E R Power for the Applicant
R G R Eagles for the Respondent
Judgment:
4 February 2022
ORAL JUDGMENT OF NATION J
[1] Mr Palmer is currently serving a sentence of imprisonment for serious sexual offending. His statutory release date is 5 February 2022. His release conditions will end on 4 August 2022.
[2] The Chief Executive of the Department of Corrections applied for an extended supervision order (ESO) under s 107F of the Parole Act 2002 (the Act) and for Mr Palmer to be subject to that order for a period of five years.
[3] The application was supported by evidence from a clinical psychologist for the Department of Corrections, Mr Berry. The Court also received evidence from an experienced psychologist and forensic specialist, Mr Riley.
DEPT OF CORRECTIONS v PALMER [2022] NZHC 137 [4 February 2022]
[4] The two psychologists conferred. On 10 December 2021 they jointly signed a document confirming they agreed that, if Mr Palmer was subject to an ESO post- release from prison and had been compliant for three years, it would be reasonable to end the ESO order at that time on the basis of a recalculated estimate of risk. With that agreement, the Chief Executive accepted that a three year term would be sufficient if an ESO order was imposed. The respondent, Mr Palmer, with the benefit of counsel, agreed to the making of an ESO on that basis if it was for a three year term.
[5] Having read all the papers and given the matter due consideration, I indicated to counsel that the outcome agreed to by the parties would be appropriate.
[6] The hearing of the application proceeded on 4 February 2022 in the High Court at Dunedin. Mr Palmer was present in Court for the hearing. Because of COVID-19 restrictions, counsel appeared remotely. It was not necessary for them to present further submissions.
[7] The parties accept that Mr Palmer is an eligible offender within the meaning of s 107C(1)(a) of the Act because he has not ceased, since his conviction for a relevant offence, to be subject to release conditions.
[8] Mr Palmer has been convicted of relevant sexual offences. On 20 December 2011, he was sentenced in the High Court at Invercargill on:
(a)five charges of unlawful sexual connection with a male aged 12 to 16, pursuant to ss 128 and 128B of the Crimes Act 1961, maximum penalty 14 years’ imprisonment;
(b)two charges of doing an indecent act with/upon a boy under 12, pursuant to s 140 of the Crimes Act, maximum penalty 10 years’ imprisonment; and
(c)two charges of doing an indecent act with/upon a boy between 12 and 16, pursuant to s 140A of the Crimes Act, maximum penalty seven years’ imprisonment.
[9] Prior to the relevant offences, Mr Palmer was sentenced in the District Court at Invercargill on 1 July 2010 in relation to 25 charges:
(a) 9 x unlawful sexual connection with a female under 12, pursuant to ss 128 and 128B of the Crimes Act, maximum penalty 20 years’ imprisonment;
(b) 2 x unlawful sexual connection with a male under 12, pursuant to ss 128 and 128B of the Crimes Act, maximum penalty 20 years’ imprisonment;
(c) 9 x indecent act with a boy under 12, pursuant to s 132(3) of the Crimes Act, maximum penalty 10 years’ imprisonment; and
(d) 5 x indecent act with a girl under 12, pursuant to s 132(3) of the Crimes Act, maximum penalty 10 years’ imprisonment.
[10] The offending for which Mr Palmer was sentenced in the High Court occurred between 1986 and 1993. That offending occurred when Mr Palmer was aged between about 16 and 23. The offending for which Mr Palmer was sentenced in the District Court was committed between 25 January 2008 and 19 July 2009, when Mr Palmer was aged between 37 and 39 years of age.
[11] The offending involved acts of sexual touching, digital penetration and masturbation, forcing the victims to engage in sexual touching and performing oral sex. The offending for which Mr Palmer was sentenced in the High Court included anal sex.
[12] The offending for which Mr Palmer was sentenced in the District Court followed on from his guilty pleas to the relevant charges. In the High Court, he was found guilty of the relevant charges at trial. Despite his earlier guilty pleas and the verdicts at trial, Mr Palmer now denies all the offending.
[13] Given the nature of his offending, it is clear Mr Palmer has displayed an intense drive, desire or urge to commit relevant sexual offences and he has a predilection or proclivity for serious sexual offending, mainly sexual offending against a child. It is also clear that, with Mr Palmer’s history of poor decision-making, entitled beliefs, impulsivity evident in the offending, and with his denial of the offending, Mr Palmer
has not displayed a capacity to self-regulate his conduct to avoid future offending to an extent that would avoid the need for an ESO. He has not accepted responsibility for his offending and thus has not shown remorse for it. Commensurate with that, he does not appear to understand or be concerned about the impact of his sexual offending on actual or potential victims.
[14] The psychologists referred to various actuarial tests to assess the level or risk of further serious sexual offending. Mr Berry concluded that, at present, there was a “Level III Average” risk of committing a further relevant sexual offence while in the community.
[15] Significant relevant matters as to that level of risk were Mr Palmer’s continuing denial of all the offending, and thus his inability to benefit from or sometimes even participate in programmes for treatment of the psychological factors that could decrease the risk of further sexual offending, and support from those within his own family who tended to support him in his denial of the offending.
[16] The grounds for the making of an ESO have thus been made out. The ESO must however be only for such a period as the Court considers necessary.
[17] It is significant to the Court and was of significance to the psychologists that, despite his denials of the offending, Mr Palmer has engaged well with sentence planning, had developed and understood a safety plan which would reduce the risk of sexual offending, and had shared that plan with key support people in a whanau hui.
[18] While Mr Palmer has not had the opportunity to reoffend while continuing to serve his prison sentences, it is relevant that there were no adverse incidents or misconduct reports relating to him. He has thus demonstrated that he is able to comply with all the constraints of a prison sentence and there was no evidence of offence replacement behaviour.
[19] Mr Berry’s evidence was that denial of sexual offending is not, of itself, a factor that escalates the risk of reoffending. Mr Riley noted that Mr Palmer’s denial of the offending and his inability to empathise with the victims or express remorse for his
actions “while having strong moral and/or ethical overtones, are not in any way indicative of heightened sexual offending risk”.
[20] Mr Palmer is now aged 51. It was accepted by the psychologists that, as offenders age, they are less likely to reoffend.
[21] Mr Riley referred to research literature which indicated that the risk of sexual recidivism decreases as a function of time spent offence-free in the community. Accepting there is currently a risk of further sexual offending sufficient to warrant the making of an ESO, Mr Riley said the level of risk would significantly reduce over a period of three years if an ESO were to be made for that period.
[22] It will be a condition of post-release conditions that Mr Palmer will have to reside at an address approved by the Parole Board. Because of the nature of his offending, his name will be on the Child Sex Offender Register. Through that, Corrections and appropriate government departments will have the ability to limit the opportunity for Mr Palmer to come into contact with children where there would be a risk of his further offending.
[23] On current evidence, if Mr Palmer proves he can live in the community for the three years duration of an ESO without offending, it is likely the risk of further serious sexual offending will reduce to a level where there will need not be any further renewal or extension of that order.
[24] I am accordingly satisfied that it is appropriate to make an ESO in respect of Mr Palmer and that this order be for a period of three years, to commence on 5 February 2022. I make such an order in terms of the draft order filed for the Chief Executive.
Solicitors:
RPB Law, Dunedin
Eagles Eagles & Redpath, Invercargill.
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