Chief Executive Department of Corrections v T
[2017] NZHC 2179
•8 September 2017
NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-142 [2017] NZHC 2179
BETWEEN CHIEF EXECUTIVE
DEPARTMENT OF CORRECTIONS Applicant
AND
T Respondent
Hearing: 6 September 2017 Appearances:
J Murdoch and E Smith for Applicant
S Oliver for RespondentJudgment:
8 September 2017
JUDGMENT OF LANG J
[on application for extended supervision order]
This judgment was delivered by me on 8 September 2017 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS v T [2017] NZHC 2179 [8 September 2017]
[1] Mr T was released from prison on 29 August 2017 after serving virtually the whole of a lengthy sentence imposed for serious sexual offending. He is currently subject to release conditions imposed by the New Zealand Parole Board. These will expire on 28 February 2018.
[2] The Chief Executive of the Department of Corrections (the Chief Executive) considers that Mr T has a pervasive pattern of serious sexual offending, and there is a high risk that he will commit a relevant sexual offence in the future. For that reason the Chief Executive has asked the Court to make an extended supervision order (ESO) in respect of Mr T for a period of ten years under s 107I of the Parole Act 2002 (the Act).
[3] Mr T does not oppose the ESO being made. He does, however, oppose the duration of the order that the Chief Executive seeks. He invites the Court to consider a reduced term of five years.
The offending
[4] On 5 December 2003, Nicholson J sentenced Mr T to 15 years imprisonment on 23 charges of sexual offending against three victims.1 He ordered Mr T to serve a minimum term of eight years imprisonment before being eligible to apply for parole.
[5] All of the offending related to young girls living in Mr T’s household. Between June 1974 and 1981 Mr T was living with S and her two daughters, A and B. Between June 1974 and June 1979, when A was aged between six and 11 years of age, Mr T frequently indecently assaulted her by putting his fingers on her vagina, forcing her head onto his penis, placing his fingers on her genitalia and rubbing his penis on her
genitalia.
1 R v T HC Auckland, T 030828, 5 December 2003.
[6] From 1974 until 1981 Mr T also indecently assaulted B, who was then between five and 12 years of age, by placing his fingers on her genitalia and by rubbing his penis on her genitalia.
[7] In or about 1981, after his relationship with S had finished, Mr T began living with T. When A was 14 years of age, she was sent to stay with Mr T and T. Mr T took this opportunity to frequently assault A by touching her genitalia. On one occasion Mr T took A to a secluded area in a vehicle and raped her.
[8] B was also sent to stay with Mr T when he was living with T. As he had done with A, Mr T took B to a remote area in a vehicle and raped her. Between October
1986 and October 1994 there were numerous other incidents in which Mr T sexually violated B by placing his penis in her mouth, and indecently assaulted her by rubbing his penis against her vagina.
[9] Between October 1986 and October 1991 Mr T started sexually abusing T’s daughter C, who was aged six, by touching and rubbing her vagina. During a separate incident when C was aged 10, Mr T sexually violated her by digitally penetrating her vagina.
[10] When C was 11, Mr T took her to a remote area in a vehicle where he sexually violated and then raped her. C was frequently raped by Mr T when she was aged between 11 and 13 years. In February 1995, when she was 14 years of age, C gave birth to a child. Mr T was the father of that child.
[11] In September/October 2000, C told her mother that Mr T was the father of her child. An argument ensued and C left the address and began walking to a friend’s place. A short time later Mr T drove alongside C. He got out of his vehicle, punched C in the face and dragged her onto the front passenger’s seat. He then proceeded to drive to a nearby river. Whilst driving to the river, Mr T punched C about the head and upper body several times. C was unable to get out of the vehicle as the internal locks on the vehicle were broken. Once at the river Mr T attempted to climb on top of C. He refused to let her out of the vehicle, verbally abused and threatened her, and
punched her several more times about the head and body. He then drove her back to the house and dropped her off.
[12] Mr T denied the charges but was found guilty by a jury.
The statutory regime
[13] Part 1A of the Parole Act 2002 provides jurisdiction for the making of ESOs of up to ten years duration where offenders have been convicted of certain offences and have been assessed by a health assessor.2 The purpose of an ESO is to protect the public from offenders who, after serving a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.3 It does so through the imposition of a closely monitored regime of supervision and management. The threshold for making an ESO is high, reflecting the severe restrictions that it places on many facets of the recipient’s life.4
[14] Section 107I(2) sets out the grounds on which a court may make an ESO:
(2) A sentencing court may make an extended supervision order if, following the hearing of an application made under section 107F, the court is satisfied, having considered the matters addressed in the health assessor's report as set out in section 107F(2A), that—
(a) the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and
(b) either or both of the following apply:
(i) there is a high risk that the offender will in future commit a relevant sexual offence:
(ii) there is a very high risk that the offender will in future commit a relevant violent offence.”
2 Parole Act 2002, s 107A.
3 Section 107I(1); R v Peta [2007] NZCA 28, [2007] 2 NZLR 627.
4 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [4].
[15] In considering s 107I(2)(a), a court is entitled to take into account not only offences that are deemed relevant in terms of the Act but also unproven offending and even conduct that does not constitute an offence.5 In making the assessment under s
107I(2)(b)(i), s 107IAA(1) provides that a court may determine there is a high risk that an eligible offender will commit a relevant sexual offence only if it is “satisfied”6 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.
[16] In terms of s 107IAA(1)(a), the Court of Appeal confirmed in Chief Executive, Department of Corrections v Alinizi that “displays” in this context “does not import a requirement that the particular traits and behavioural characteristics, while required to be ‘present’, must be externally manifested at the time of application”.7
[17] In practical terms, a person who is the subject of an ESO must comply with the standard conditions set out in s 107JA of the Act, and any special conditions imposed by the Parole Board under s 107K. Breaching those conditions is an offence punishable by imprisonment of up to two years.
[18] Once the court has decided to make an ESO it must determine the duration of the order. Section 107I(5) states that the term must be the minimum period required for the purposes of the safety of the community in light of:
(a) the level of risk posed by the offender; and
(b) the seriousness of the harm that might be caused to victims; and
5 At [42].
6In this context, “satisfied” simply means the court must exercise its judgment regarding the matters in issue. Neither party carries any burden or standard of proof: McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352 at [75].
7 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [27].
(c) the likely duration of the risk.
[19] After an ESO order has been made, s 107N(i) provides that, on application by either the offender or the Chief Executive, the Court may cancel the order if satisfied that the offender no longer poses a high risk of committing a relevant sexual and/or violent offence during its remaining term.
Threshold issues
[20] Reflecting both the above statutory framework and the Court of Appeal’s statement of the approach in Alinizi,8 my assessment as to whether to make an ESO would ordinarily proceed as follows:
(a) Does Mr T have, or has he had, a pervasive pattern of serious sexual offending?
(b)Does Mr T meet the qualifying criteria set out in s 107IAA, listed above at [15]?
(c) Does Mr T present a high risk of committing a relevant sexual offence in future?
[21] In the present case, however, Ms Oliver acknowledges on Mr T’s behalf that the circumstances of the offending clearly disclose that he has had a pervasive pattern of serious sexual offending and that he meets the qualifying criteria set out in a
107IAA. Furthermore, the psychologists engaged by both the Chief Executive and Mr T agree that he presents a high risk of committing a relevant sexual offence in the future. As a result, there is no dispute that an ESO is required. The only issue is the
appropriate duration of the order.
8 At [3].
The views of the psychologists
Ms Falconer-Beach
[22] The Chief Executive contends that a term of ten years is necessary to protect the public against the risk that Mr T will commit further serious sexual offences in the future. The Chief Executive relies on the conclusions contained in a report prepared by Ms Katrina Falconer-Beach, a registered clinical psychologist employed by the Department of Corrections. Ms Falconer-Beach supplemented these with oral evidence given at the hearing.
[23] Ms Falconer-Beach notes that Mr T reports having been sexually abused himself as a child by older children in a foster home where he was living. Older children also paid him to sexually abuse younger children in the home. This continued until he left the home at 13 years of age. Thereafter he lived with a male relation, and reported having groomed young adolescent girls to engage in sexual activity with him. His ability to coerce females into such activity became an important part of his self- identity. He then became a father when he was just 13 years of age after manipulating an older woman to have sexual intercourse with him. Ms Falconer-Beach also points out that as an adult Mr T sexually abused young girls who were the daughters of his
then partners for a very lengthy period until he was 43 years of age. This led to his conviction and imprisonment in 2003.
[24] Ms Falconer-Beach points out that Mr T’s offending “reveals a callous disregard for others, deviant sexual scripts, a sense of entitlement and compulsivity, a pattern of manipulating others into providing him with sexual gratification, and a willingness and ability to control others around him so as not to be challenged about his behaviour”. He reported believing he would always escape the consequences of his actions, and the offending continued even though the victims told trusted adults what was happening. The offending became increasingly intrusive and, at times, violent. It also involved significant abuse of trust on his part.
[25] Whilst in prison Mr T attended the Kia Marama programme for sexual offenders for approximately six months, and this is said to have given him a rudimentary understanding of his offence pathways. He appeared to genuinely reflect
on his offending at times during this period, but he was eventually removed from the programme because he continually engaged in conduct that interfered with both his own therapy and that of others. This served to limit the extent to which others could provide him with challenging feedback, and he is said to have expressed pride at the fact that he could manipulate his group in that way. He also engaged in aggressive and avoidant conduct towards staff when asked to participate in an exercise designed to facilitate his empathetic understanding. When directly challenged, Mr T responded with intimidation and threats.
[26] Ms Falconer-Beach says Mr T still regards himself as being at risk for sexually abusing children, reporting that he has been significantly sexually conditioned to find sexually-related elements of young children arousing. He also says he finds having sexual power and control over others arousing. She says Mr T has demonstrated, and is still likely to have, an intense desire or urge to commit further relevant sexual offences.
[27] Given that background Ms Falconer-Beach considers that Mr T will continue to present as a high risk of sexual offending for many years. She does not see the fact that he is now 67 years of age as being likely to significantly reduce this risk because his attitudes and tendencies are now so deeply engrained within his psychological makeup. For that reason she considers that any ESO should remain in place for the maximum term of ten years.
Dr Nuth
[28] Dr Nuth does not disagree with many of the conclusions reached by
Ms Falconer-Beach. He acknowledges that Mr T lacks concern for others and that this pervasive trait enabled him to put his own sexual needs first and to commit the offending for which he has spent most of the last 15 years in prison. Dr Nuth says Mr T displays traits that are enduring despite his claims that his sexual drive has diminished. He also says that Mr T has a relatively poor understanding of the impact of his sexual offending, and is either unwilling or unable to deeply explore the reasons for his behaviour. For these reasons Dr Nuth accepts that Mr T remains at high risk of sexual offending in the future. Dr Nuth therefore agrees an ESO is necessary to ensure
Mr T has a protective network around him to closely monitor and supervise his activities as he endeavours to establish his own protective measures to guard against future offending.
[29] Dr Nuth acknowledges that the ten year time frame suggested by Ms Falconer- Beach is “broadly congruent” with the level of risk that Mr T poses, and in particular the level of support he will require in the community. Dr Nuth qualifies this, however, by saying that in his view an ESO of at least five years duration may be sufficient to enable Mr T to establish a protective lifestyle that will minimise the risk of further sexual offending in the future. This will require Mr T to establish a lifestyle that includes a stable home life, pro-social friends and productive activities. Dr Nuth also considers that the selection of periods such as five or ten years for the duration of an ESO contained an element of artificiality because nobody can know for sure what the future holds for a person in Mr T’s position.
Decision
[30] There can be no doubt that an ESO is required in the present case. The level of risk that Mr T currently poses, and the seriousness of the harm that will occur if he offends in a sexual way in the future, are also such that the ESO will need to be of significant duration if the community is to be properly protected against the risk of further offending. All of the threshold requirements for the making of an ESO have been established.
[31] Furthermore, Mr T currently has no effective means of protecting himself against the prospect of further sexual offending. He has no permanent home or job, and his wider family wants nothing to do with him. His friends at present are likely to be those he made in prison. The fact that Mr T completed six months of the Kia Marama programme is also of little comfort given the circumstances that led to him being removed. The possibility that this may have given him a rudimentary understanding of his offence pathways likewise provides scant reassurance that he will not offend again in the future.
[32] Four factors suggest, however, that an ESO of ten years duration may be more than is required to properly protect the community. The first is that Mr T is now 67
years of age. I accept that his traits are now ingrained and likely to endure, but I also consider they are likely to wane or be of slightly less influence as he moves into his seventies.
[33] The second is that Mr T does not appear to have offended sexually during the ten year period after he stopped abusing C and before his arrest on the charges relating to A, B and C. This suggests Mr T may have the ability to go for extended periods without offending in a sexual way.
[34] The third is that, if history is any guide, Mr T does not offend in a random manner. Rather, he targets vulnerable individuals within or around his domestic environment. As Ms Falconer-Beach observes:
It is considered that there is a high risk that Mr T will engage in relevant sexual offending within 10 years of release. Should Mr T sexually re-offend, it is likely to occur in the context of him manipulating a female partner within an intimate relationship in order to gain access to her female prepubescent or early adolescent children. Should Mr T ever cohabit with a female child, sexual offending against that child is a significant risk. If sexual offending were to occur, it is likely to take the form of digital penetration and forced oral masturbation but could possibly escalate to rape when the child reaches early adolescence. It is likely to involve a degree of grooming and intimidation to enable the sexual offending to occur and to ensure that the victims do not disclose the abuse. Manipulation of the child’s caregivers, who are responsible for their protection, is highly likely.
[35] Mr T’s predilection for offending against young females within his home or domestic environment means that females in the wider community are unlikely to be at risk from him in the future. Had that not been the case, an order of ten years duration would have been inevitable because it would be the only way in which the risk to the community as a whole could be managed. As matters currently stand, however, the focus of preventive measures in the future is likely to be on the choices Mr T makes regarding his living and social arrangements.
[36] In particular, the authorities will no doubt be anxious to ensure that Mr T’s living, work and social arrangements do not bring him into contact with young girls. It is now obvious that he can never be permitted to spend time in any environment where young girls are regularly present. I consider it is also likely to become obvious
well within ten years whether Mr T has the ability to adhere to arrangements that prevent him from having contact with young females.
[37] Thirdly, and allied to the last point, Mr T’s convictions mean that he will be subject to the provisions of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 for the rest of his life. As Dr Nuth points out, this will place significant limitations on Mr T’s whereabouts, travel, club membership, use of the internet and ability to conceal his identity.
[38] Finally, the Chief Executive can always apply to extend the order in the event that Mr T remains at high risk of future sexual offending when the present ESO expires. In Alinizi the Court of Appeal observed that, where there is a choice between making an order of ten years duration and leaving it to the offender to apply at an earlier time to cancel the order or making an order of shorter duration and leaving it to the Chief Executive to apply to extend it, the latter course is appropriate.9
[39] All of these factors persuade me that an ESO of less than ten years will be sufficient to properly protect the community from the level of risk that Mr T presents of further sexual offending. I consider an ESO of seven years six months duration to be sufficient. This would expire shortly after Mr T turns 75 years of age. By that stage it should be clear whether the ESO has served its purpose or needs to be extended further. In particular, it will give Mr T ample time within which to establish a protective lifestyle whilst ensuring he remains subject to close monitoring and oversight for a very considerable period.
Result
[40] I make an extended supervision order for a period of seven year six months from today’s date. The conditions of the order are those set out in s 107JA of the Act.
[41] I record that Ms Murdoch for the Chief Executive has not asked me to make any interim special conditions under s 107IA. Special conditions will therefore need
to be set by the parole authorities.
9 Chief Executive, Department of Corrections v Alinizi, above n 7, at [40].
Lang J
Solicitors:
Crown Solicitor, Auckland
4
3
1