Chief Executive of Department of Corrections v Hawkins
[2021] NZHC 2460
•17 September 2021
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2021-416-003
[2021] NZHC 2460
UNDER section 107F of the Parole Act 2002 IN THE MATTER OF
an application for an Extended Supervision Order
BETWEEN
THE CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS
Applicant
AND
ROWLAND GUY HAWKINS
Respondent
Hearing: 17 September 2021 Counsel:
M J R Blaschke for Applicant M J Phelps for Respondent
Judgment:
17 September 2021
REASONS FOR DECISION OF CHURCHMAN J
[1] At the conclusion of the hearing of this matter today, I gave an oral decision imposing an Extended Supervision Order for five years on the standard conditions. I now set out my reasons for doing so.
[2] On 8 March 2021, the applicant applied for an Extended Supervision Order (ESO) pursuant to s 107F of the Parole Act 2002 (the Act).1
1 For this application, the Chief Executive of the Department of Corrections, Mr Jeremy Lightfoot, delegated his powers under Part 1A of the Parole Act 2002 to Mr Topia Rameka, Acting National Commissioner of Corrections Services, under s 41 of the State Sector Act 1988 (now s 2 of the Public Service Act 2020).
THE CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS v HAWKINS [2021] NZHC 2460
[17 September 2021]
[3] There is no dispute that the respondent is an Eligible Offender within the meaning of s 107C(1)(a) of the Act in that:
(a)on 1 December 2006, a cumulative sentence of 16 years’ imprisonment was imposed on him by the High Court at Gisborne in respect of:2
(i)four counts of sexual violation by rape;
(ii)five counts of injuring with intent to injure; and
(iii)one count of kidnapping after the respondent was found guilty and convicted of these offences;
(b)sexual violation by rape is a relevant sexual offence pursuant to s 107B(2)(a) of the Act; and
(c)the respondent was then presently in custody with a sentence end date of 31 July 2021. He had been eligible for parole since 1 August 2013. He is subject to release conditions until 30 January 2022.
[4] Although the respondent had been convicted for relevant violent offences,3 the application was stated to be made primarily on the basis of the respondent’s sexual offending.
Background to offending
[5] Mr Hawkins’ offending related to the abuse of his former partner, which included three separate occasions of rape, five of injuring with intent to injure, and one of kidnapping. Mr Hawkins’ fourth rape charge related to the rape of his partner’s mother.
2 R v Hawkins HC Gisborne CRI-2005-016-2703, 1 December 2006.
3 Section 107B(2A)(m).
[6] The offending occurred between 1999 and 2005 and involved numerous incidents of Mr Hawkins’ raping or serious assaulting his then partner and one instance of raping his partner’s mother to punish her for supporting her daughter.
[7] The Judge’s sentencing notes accurately captured the nature of the offending in the comment:4
In over 35 years in law practice, both as a lawyer and as a Judge, I have not experienced a case of such sustained brutality and cruelty.
Background to the ESO
[8] At the point of the application in March 2021, it appeared that Mr Hawkins may oppose the making of the order. However, his counsel has confirmed that he would not oppose the imposition of that order for a five-year period.
[9] Under s 107F(2) of the Act, every application for an ESO by the Chief Executive must be accompanied by a Health Assessor’s Report. That report was completed on 4 November 2020 by Dr N J Wilson, a registered clinical psychologist, and I will now briefly address its findings.
[10] Despite Mr Hawkins being somewhat reluctant to consent to an interview with the Health Assessor, he eventually agreed to engage in the assessment. The report was based on that interview, as well as his previous conviction history, interviews with Mr Hawkins’ PCO, his brother-in-law, a number of psychological service reports, the sentencing notes of Justice Harrison, and his pre-sentence report.
[11] The report firstly set out Mr Hawkins’ pattern of previous offences, noting that he had over 60 convictions across a 21-year period, which had escalated from relatively minor offending to more violent offences including injury with intent and aggravated assault. After setting the relevant offending which Mr Hawkins was sentenced for in 2006, the report-writer noted that Mr Hawkins disagreed both in Court and subsequently while imprisoned with his convictions, arguing that the activity that was the subject matter of the convictions was either consensual or did not occur. It
4 Above n 2, at [11].
was noted that over the years since his engagement in the Adult Sexual Offender Treatment Programme, he had returned to a strong denial of his sexual offending and sought to minimise aspects of his non-sexual interpersonal violence against his partner, refusing to accept responsibility or display guilt for his actions.
[12] According to the rape pathway classification model, an analysis of Mr Hawkins’ convictions for sexual violence and his pattern of offending indicated that he was most likely to be similar to those in the MTC-R3 classification system with a vindictive rape profile, as his rape offences were typically carried out in the context of interpersonal violence, with a motive to humiliate, harm, and exert power and control.
[13] The report then turned to Mr Hawkins’ personal background. The report-writer described certain traumatic events in his childhood, including sexual abuse that he experienced between the age of four and 10 by older cousins living in the family home, difficulties at school with fighting, truancy, and being bullied, and being placed in social welfare care when aged between 12 and 13 years’ old. Mr Hawkins also became involved with gangs, specifically Black Power, in his teenage years.
[14] Mr Hawkins’ behaviour while in prison was noted. While over his 16 years’ imprisonment there was a pattern reflecting periods of good behaviour and compliance including promising engagement with te ao Māori in the Te Ara Māori unit, there were also a number of concerning incidents relating to fighting, failure to follow orders, offensive behaviour and most relevantly, inappropriate sexualised behaviour towards female staff. This behaviour included indecent exposure and inappropriate language towards female prison officers. Mr Hawkins denied these incidents and blamed the officers, saying that there were against him.
[15] In terms of Mr Hawkins’ general personality functioning, an assessment of his major personality patterns found significant elevations for narcissistic, turbulent, and of particular concern, paranoid personality styles, and also a significant severe syndrome elevation on the delusional scale. In the opinion of the report-writer, Mr Hawkins’ paranoia, already present in his offending in generating vindictive
motivation, has increased markedly, become more rigid, and generalised across interpersonal interactions over the last 16 years.
[16] The report-writer also described Mr Hawkins’ psychological formulation as being influenced by his traumatic childhood, and that his coercive and self-centred personality style where he was suspicious of the efforts of others to control him saw him associate with antisocial peers who encouraged criminal behaviour, and normalised violence as an appropriate way to deal with conflict.
[17] While Mr Hawkins had completed the Adult Sexual Offender Treatment Programme relatively early in his sentence of imprisonment (between June and December 2007) and was reported to have moved away from complete denial of his rape convictions, he still denied the severity of what was reported in Court and continued to deny raping his partner’s mother. According to an assessment of Mr Hawkins following the treatment programme:
The post treatment MSI-II [Multiphasic Sex Inventory-II] completed by Mr Hawkins indicated a sexual perspective with a desire to impression management his responses, with denial of sexual interest or thoughts of rape. The measure also indicated that he saw his anger as the principle motivation for his offending and that he believed was unplanned and justified by the victims’ behaviour. As such, the MSI-II indicated Mr Hawkins was minimally disclosing having committed a sexual assault. There was no understanding of the dynamics involved in his offence behaviour that would enable him to prevent future similar offences, and results suggested that he felt highly insecure and inadequate in social/sexual interactions with adult females. Overall, while Mr Hawkins was assessed by the MS-II as recognising the need for treatment, he was rated as having made very limited treatment progress.
[18] In the opinion of the report-writer (noting the above observation), there was no evidence of reliability in Mr Hawkins’ ability to manage his own behaviour, especially when emotionally elevated and subject to intimate relationship conflict.
[19] Addressing Mr Hawkins’ potential to re-offend, the report-writer noted the following:
(a)that under the RoC*Rol (an actuarial risk measure developed by the Department of Corrections to assist in the prediction of an offender’s risk of imprisonment following reconviction), Mr Hawkins had a score
that indicated a moderate-high risk of reimprisonment within five years of his sentence being imposed;
(b)that under the Automated Sexual Recidivism Scale, Mr Hawkins had a score that classified him at medium-low risk of further sexual offending;
(c)that on the Violence Risk Scale – Sexual Offence Version, Mr Hawkins’ risk was considered as being well above average with factors relating to his risk including a sexually deviant lifestyle, sexual compulsivity, offence planning, criminal personality, cognitive distortions, interpersonal aggression and emotional control; and
(d)that on the Psychopathy Checklist: Screening Version, Mr Hawkins was found to have a high risk of serious re-offending within five years of release, and a high risk of sexual recidivism, informed by his vindictive rape and paranoid personality style.
[20] Overall considering those assessments in totality, the report-writer considered that Mr Hawkins had a high risk of committing a further relevant sexual offence while in the community, within 10 years of release. Based on Mr Hawkins’ past vindictive sexual assaults and use of violence in general, the report-writer concluded that a significant level of violence may be used by him to control victims and punish them, and he is unlikely to be deterred by his victim’s distress.
[21] Finally, the report-writer summarised Mr Hawkins’ risk issues relevant to s 107IAA of the Parole Act:
(a)The offender’s display of an intensive drive, desire, or urge to commit a relevant sexual offence: The number and length of Mr Hawkins’ convictions for rape (between 1999 and 2006) and the vindictive nature of his offending meant that his inability to manage intimate conflict, a high self-focus and sexual entitlement, continued use of aggression, social immaturity and paranoid social interpretation supported an intensive vindictive urge to control and punish across his sexual offences. The fact that he had continued to display sexualised behaviours to female prison staff was also concerning.
(b)The offender’s predilection or proclivity for serious sexual offending: The report-writer considered Mr Hawkins to not have a serious predilection for serious sexual offending, but did have a strong disposition or proclivity for rape based on his beliefs, social immaturity, and need to control and punish within the context of an intimate relationship.
(c)The offender’s self-regulatory capacity: Mr Hawkins had a long history of general impulsivity and inability to cope with challenge or rejection. His rape convictions, denial of those convictions, and inappropriate sexual behaviour while in prison, as well as his prominent paranoia, meant that these issues were still present for him.
(d)The offender’s acceptance of responsibility and remorse for past offending: Mr Hawkins appeared to have approach his treatment in prison as a task to be “ticked off” rather than accepting a need to change. His denial and continued inappropriate behaviour reflected that there was no reliable personal responsibility or remorse.
(e)The offender’s understanding for or concern about the impact of his or her sexual offending on actual or potential victims: Mr Hawkins continues to blame his victims, and minimise his own violent behaviour. This indicated little understanding or concern for the effect of his offending.
(f)Any other relevant matters: According to the report-writer, of particular clinical concern was the significant personality elevation for paranoia, as a personality style that was difficult to treat and an enduring risk factor for serious interpersonal conflict.
[22] Ultimately, the report-writer concluded that Mr Hawkins presented with a number of enduring dynamic risk factors that reflected a high level of risk for further sexual offending. His failure to reliably maintain change along with his inappropriate prison behaviour suggest that this risk will remain at a high level over the longer term, particularly with his paranoid personality style.
The joint position of the parties
[23] Counsel for the parties filed a joint memorandum dated 9 September 2021 signalling that Mr Hawkins did not oppose the imposition of an ESO for a five-year period. The memorandum discussed the relevant law and the rationale for the proposed five-year duration. Counsel amplified those submissions orally today.
[24] Counsel referred to the Court of Appeal decision of Chief Executive, Department of Corrections v Alinizi, where Brown J described the statutory framework
which governed the Court’s assessment of whether an ESO was appropriate in the circumstances as entailing a three-step process:5
(a)the Court must determine whether the offender has, or has had, a pervasive pattern of serious sexual or violent offending;
(b)the Court must make specific findings as to whether the offender meets the qualifying criteria set out in s 107IAA; and
(c)if those criteria are met the Court must make a determination about the risk of the offender committing a relevant sexual or violent offence.
[25] Counsel noted that the length of an ESO is fixed by reference to s 107I(5) of the Act, which provides that the term of the order 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
(c)the likely duration of the risk.
[26] Counsel noted that following amendments to the Act, the Department of Corrections may now apply for a renewal of an ESO as often as they are needed, and successive orders may be made. Mr Blaschke indicated that it was this legislative change that had prompted the Department to consider what term of order it would seek.
[27] In terms of the three-step framework set out above, the parties accepted, having regard to the evidence and the case law, that Mr Hawkins had a pervasive pattern of sexual offending, that the Court could be satisfied that the s 107IAA qualifying criteria were met, and that there was a high risk that Mr Hawkins would in future commit a relevant sexual offence.
5 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].
[28] While acknowledging that Mr Hawkins had completed the that Adult Sexual Offender Treatment Programme and made some gains in prison, as well as having considerable whānau and iwi support (Mr Hawkins has whakapapa to Ngāti Pāhauwera and Ngāi Tahu), in all the circumstances both counsel suggested that the imposition of an ESO for five years was appropriate, and proportionate to the risk posed.
[29] Notwithstanding the joint position adopted by counsel, I must independently undertake the assessment required by s 107I of the Parole Act and do so now. I also add that I do not accept that there is anything in the amendments to the legislation that permit the Department to apply for successive orders, that authorises the Court to depart from the obligation to impose the minimum term necessary for the purposes of the safety of the community.
Should an ESO be granted?
[30] The starting point, before applying the three-step process set out at [24] above, is to determine whether Mr Hawkins is an eligible offender.6 An eligible offender is an offender who must have been continuously subject to a term of imprisonment, release conditions, or an extended supervision order from the time they were sentenced to imprisonment for the relevant offence to the time when the extended supervision order was applied for.7 For the reasons set out in [3] above, Mr Hawkins was subject to a term of imprisonment during the time in which the ESO was applied for, and he is clearly an eligible offender.
[31] Turning now to the three-step analysis. Counsel referred to the case of Paniora v Chief Executive of the Department of Corrections, where the Court of Appeal noted that this Court’s decision is of an evaluative nature, rather than merely acting as a “rubber stamp” to the health assessor’s report.8 A decision imposing an ESO must address the statutory criteria for making such an order, and contain a clear explanation
6 Above n 5, at [13].
7 Parole Act 2002, s 107C(1)(a).
8 Paniora v Chief Executive of the Department of Corrections [2018] NZCA 607 at [21].
to the offender of the reasons for imposing an ESO. A decision can be relatively brief when the application is unopposed, but the statutory criteria still must be addressed.9
[32] Under the first step, I must consider whether Mr Hawkins has, or has had, a pervasive pattern of serious sexual or violent offending. In W (CA716/18) v Chief Executive of the Department of Corrections, the dictionary meaning of “pervade” as “spread throughout, permeate” was held to describe continued occurrences of sexual offending throughout the offender’s adult life (in that case from the offender’s teenage years into his 40s).10 However, the assessment is contextual; it will usually be necessary to consider a wide range of factors relating to both the offender and the offending, including the number of incidents, the connection in time between them, the objective similarity of the offending, whether there is a unifying theme or object (for example, an underlying deviancy or an abusive relationship or series of relationships), the number of victims, and any behavioural characteristics or traits of the offender that underpin or drive the offending.11 Given these types of factors, the offender’s conviction history and psychological assessments (including the health assessor’s report) will be relevant to determining a pervasive pattern.
[33] Although the number of convictions relating to Mr Hawkins’ sexual offending is not necessarily as high as some other cases where an ESO has been sought, the offending for which he was sentenced on 1 December 2006 reflected a pervasive pattern of sexual offending. The offending stretched over a number of years and reflected what the health assessor’s report described as Mr Hawkins’ vindictive rape profile, whereby his sexual offending was carried out in the context of interpersonal violence directed at his former partner in an attempt to both humiliate and harm her, and also exert power and control. The strongest example of this is the “vindictive motivation” in the rape of his former partner’s mother. There is therefore, a unifying theme in the offending, targeted within an intimate relationship, and characterised by concerning behavioural traits.
9 Turnbull v Chief Executive of the Department of Corrections [2020] NZCA 409 at [11].
10 W (CA716/18) v Chief Executive of the Department of Corrections [2019] NZCA 460 at [24].
11 Chief Executive of the Department of Corrections v Ihimaera [2019] NZHC 19 at [38].
[34] Under the second step, I must make specific findings as to whether the offender meets the qualifying criteria set out in s 107IAA. The Court of Appeal gave the following guidance in McIntosh v Chief Executive of the Department of Corrections on the s 107IAA criteria:12
Determining whether there is a high risk that a given offender will commit a relevant sexual offence within a stated period is an inherently difficult exercise. Parliament has provided some structure and discipline to the assessment by prescribing the characteristics any offender who poses this high risk will have. The first two – intense drive, desire, or urge to commit a relevant sexual offence and predilection or proclivity for serious sexual offending – could be seen as animating characteristics. The second two – limited self-regulatory capacity; and lack of acceptance of responsibility or remorse for past offending and absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims – could be described as protective characteristics. These characteristics cannot be construed and applied in absolute terms. They are human characteristics and, to the extent they are present, they will vary from one person to another.
[35] I make the following findings under the s 107IAA criteria. Firstly, I address the requirements of s 107IAA(1)(a) (displays an intense drive, desire, or urge to commit a relevant sexual offence). Due to his rape convictions under s 128B(1) of the Crimes Act 1961, Mr Hawkins has already committed a relevant offence under s 107B(2) of the Act, and this offending stretched over almost six years. Furthermore, while in prison, Mr Hawkins has displayed concerning behaviour in relation to female prison staff. I note that an intense drive, desire, or urge to commit a relevant sexual offence does not require that the particular traits are externally manifested at the time of application, but rather that the relevant traits and behavioural characteristics must be currently possessed by the offender.13 Mr Hawkins’ vindictive rape profile, coupled with his continued concerning behaviour while in prison and his capacity to commit serious sexual offences over a long period of time, is consistent with the views expressed in the health assessor’s report that this indicates an intense vindictive urge to control and punish through sexual offending, particularly in an intimate relationship.
[36] Secondly, s 107IAA(1)(b) (has a predilection or proclivity for serious sexual offending). While the health assessor’s report concluded that Mr Hawkins did not appear to have a predilection for serious sexual offending, the report-writer was of the
12 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218 at [22].
13 See Chief Executive of the Department of Corrections v CJW [2016] NZHC 1082 at [33].
opinion that Mr Hawkins had a strong disposition or proclivity for rape based on his beliefs, social immaturity, and need to control and punish within the context of an intimate relationships. This is quite clearly evident from the convictions for which Mr Hawkins was sentenced. A proclivity for sexual offending encompasses the concept of a pattern,14 and I have already found that a pattern is present here.
[37] Thirdly, s 107IAA(1)(c) (has limited self-regulatory capacity). Mr Hawkins’s difficulty with appropriately self-regulating his behaviour is evident in the length of time between the first and final rape conviction – showing that he was unable to regulate his own behaviour over a number of years – and also through his inappropriate behaviour in prison, despite the fact that he had taken part in the Adult Sex Offender Treatment Programme. His paranoid personality, as discussed in the health assessor’s report, also no doubt contributes to his lack of capacity for self-regulation.
[38] Finally, s 107IAA(d) (displays either or both a lack of acceptance of responsibility or remorse for past offending, or an absence of understanding for or concern about the impact of his sexual offending on actual or potential victims). This is perhaps the most concerning risk factor under s 107IAA in this case. Despite undergoing treatment programmes and spending 16 years in prison, Mr Hawkins continues to deny his offending, and minimise its impact on the victims, reflecting a lack of acceptance of personal responsibility, remorse, or awareness. The reported lack of concern for the female staff in prison who complained about his inappropriate sexual behaviour is also relevant here.
[39] Overall, I conclude that Mr Hawkins meets all of the qualifying criteria under s 107IAA. Bearing this in mind and turning to the third step, I find that there is a high risk that Mr Hawkins will commit a relevant sexual offence. As discussed above, the findings under s 107IAA(1)(d) that Mr Hawkins has displayed a significant lack of remorse or awareness in relation to this offending and its impact of the victims are particularly concerning, and heighten the risk in this case.
[40] As all three steps have been satisfied, I have determined that an ESO should be made. The final step is to consider the length of that order. Counsel in their joint
14 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [41].
memorandum have considered that the imposition of an ESO for five years is appropriate, and proportionate to the risk posed.
[41] As counsel rightly acknowledged, I am required to determine the minimum period of the term of the order (the maximum period being ten years) required for the purposes of the safety of the community in light of the level of risk posed by the offender, the seriousness of the harm that might be caused to victims, and the likely duration of the risk.
[42] As I indicated to counsel, my greatest concern here is Mr Hawkins’ lack of remorse and awareness, and whether a five-year period would be sufficient to protect the safety of the community. I have already determined that Mr Hawkins poses a high risk, and given his convictions and vindictive rape profile, the harm that might be caused to potential victims could be very serious. Mr Hawkins’ lack of remorse may also affect the duration of the risk, in that I would be more likely to be convinced that his risk could be appropriately managed for only a five-year period if he had shown more progress while in prison.
[43] I acknowledge, as Jagose J did in Chief Executive of Department of Corrections v Tuliloa, that the imposition of any ESO engages rights protected by the New Zealand Bill of Rights Act 1990, not only because it can be seen as a retrospective double penalty, but also by its substantial incursion into the offender’s freedom of movement and association.15
[44] However, I also note that the Court of Appeal has held that where an offender categorically denies previous offending and consequently is unwilling to undertake treatment directed to the sexual offending, it would be open to a Court to direct an ESO of the full 10 year period.16 Similarly, in Pou v Chief Executive of the Department of Corrections, the Court of Appeal found that a 10-year term was appropriate given the offender’s high risk of sexual offending coupled with the lack of acceptance and insight into past sexual offending,17 while in Paniora v Chief Executive of the
15 Chief Executive of Department of Corrections v Tuliloa [2021] NZHC 1559 at [37].
16 Chief Executive, Department of Corrections v Alinizi, above n 5, at [38].
17 Pou v Chief Executive of the Department of Corrections [2017] NZCA 593 at [22]. I acknowledge however, that in this case and in Paniora, a 10-year period had already been imposed in the High
Department of Corrections, the Court of Appeal held that there was “ample evidence” in the history of the appellant’s offending and his lack of understanding of or concern about the impact of his offending to uphold the High Court Judge’s decision to impose a 10-year term.18
[45] However, I accept Mr Phelps’ submission that Mr Hawkins has engaged in the Adult Sexual Offender Treatment Programme, although the report-writer described his approach to that programme as something to be “ticked off”, rather than seeking to change his beliefs or behaviour. I also accept he has some limited insight.
[46] Other relevant factors urged upon me by Mr Phelps were the fact that Mr Hawkins was now aged 52 and has had the opportunity to reflect on his behaviour over the last 16 years. He is now residing in Taupō where he has strong whānau support and the particular risk identified in the psychological report related to offending against an intimate partner. Mr Phelps submitted that the condition relating to approval by the probation officer of any intimate partner relationship reduced the risk of such offending.
[47] When weighing these factors against the requirement to impose the minimum term consonant with safety in the community, I have, by a fine margin, concluded that a term of five years should be imposed. I have also been influenced in reaching that conclusion by the support of counsel for the Department for an order of that length.
Court, whereas in Alinizi, there was no suggested period as the High Court Judge had not imposed an ESO.
18 Paniora v Chief Executive of the Department of Corrections, above n 8, at [25].
Result
[48] The application is granted. Mr Hawkins will be subject to an extended supervision order and the conditions that entails under s 107JA of the Act for a period of five years.
Churchman J
Solicitors:
Crown Solicitor, Napier
cc: M J Phelps, Barrister, Hastings
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