Chief Executive Department of Corrections v Ross

[2021] NZHC 205

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2011-409-000125

[2021] NZHC 205

BETWEEN

CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS
Applicant

AND

WALTER JAMES ROSS

Respondent

Hearing:

18 February 2021

Appearances:

C E Martyn for Applicant

No appearance for Respondent

Judgment:

18 February 2021

ORAL JUDGMENT OF DUNNINGHAM J

[1]    On 15 July 2005, Mr Ross was sentenced to seven years’ imprisonment on a variety of charges of sexual offending against five separate child victims, as well as charges of indecency with animals. On 16 March 2012, prior to his release, the Christchurch High Court made an extended supervision order (ESO) in relation to Mr Ross, for a period of 10 years. It was due to expire on 30 April 2022.

[2]    In 2015, Mr Ross sustained a cervical spine injury in a high speed motor vehicle accident. This has rendered him a tetraplegic. As the memorandum from Lindon Pullan, the Manager, Psychological Services, says, this is expected to be a long term disability and there have been no incidents or breaches of his ESO from the time he sustained that injury. Mr Pullan says that Mr Ross is largely incapacitated and needs assistance to get into a wheelchair. He is well managed at the St John of God hospice in Christchurch. He says there is no indication that the adjacent schools pose a risk of Mr Ross seeking opportunities to engage with minors and offend.

CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS v ROSS [2021] NZHC 205 [18 February 2021]

[3]    In his opinion, the risk of Mr Ross reoffending is currently mitigated by his health condition and support needs. Mr Pullan supports the termination of his order based on Mr Ross’s significant physical limitations which are not expected to resolve over the remainder of the period of his order or for the long term.

[4]    In light of this advice, the applicant has applied to cancel the ESO pursuant to s 107M of the Parole Act 2002.

[5]    Mr Ross has been served with the application to cancel his ESO. His mother, Maureen Sunbeam, who holds power of attorney in relation to Mr Ross’s affairs, confirms that her son is not physically able to attend court and does not wish to do so. He consents to the application being cancelled.

Discussion

[6]Section 107M(1) provides:

At any time after an extended supervision order has come into force, the offender who is subject to the order, or the chief executive, may apply to the sentencing court to cancel the order on the grounds that the offender poses neither a high risk of committing a relevant sexual offence, … within the remaining term of the order.

[7]    Under s 107M(4) this Court may order the cancellation of an ESO only if the applicant satisfies the Court, on the basis of the matter set out in s 107(IAA), that the offender no longer poses a high risk of committing a relevant sexual offence within the remaining term of the order.

[8]    Section 107IAA sets out the considerations the Court must be satisfied of, if it is to determine that there is a high risk that an eligible offender will commit a relevant sexual offence. These include 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:

(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.

[9]    I do not need to consider these issues in any detail. The fact is that Mr Ross, because of his physical disability no longer displays an intense drive, desire, or urge to commit a relevant sexual offence and he no longer constitutes a high risk of sexual offending or a risk to the safety of the community.

[10]   Accordingly, I make an order pursuant to s 107M cancelling the ESO made on 16 March 2012.

Solicitors:
Raymond Donnelly & Co., Christchurch