Chief Executive of Department of Corrections v Neill
[2014] NZHC 1732
•23 July 2014
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF ANY VICTIMS OR THEIR FAMILIES.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-000030 [2014] NZHC 1732
BETWEEN THE CHIEF EXECUTIVE OF
DEPARTMENT OF CORRECTIONS Applicant
AND
ROBERT REGINALD NEILL Respondent
Hearing: 23 July 2014 Appearances:
P Currie for Applicant
S Shamy for RespondentJudgment:
23 July 2014
JUDGMENT OF MANDER J
Note: Parts of this judgment have been redacted. Introduction
[1] The Chief Executive of the Department of Corrections applies for an extended supervision order (ESO) in respect of a serving prisoner, Robert Reginald Neill.
[2] Mr Neill does not accept that he is at high risk of offending but has indicated to the Court that he will abide the decision of the Court. I am advised from the Bar that Mr Neill has received a critique of the report that has been prepared for the
purposes of this application that indicates that he falls into a lower static group in
THE CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS v NEILL [2014] NZHC 1732 [23 July
2014]
terms of his risk of reoffending than that assessed by Ms Roper, the report writer. He has however not been formally assessed. The formal position taken by the respondent is that the application is neither consented to nor opposed. Regardless, it is for the Court to satisfy itself that there are proper grounds to make such an order. Mr Neill was sentenced on 15 October 2009 in the High Court to an effective term of five years, six months imprisonment, having pleaded guilty to one charge of sexual violation by unlawful sexual connection of an 11 year old boy and two charges of doing an indecent act with and upon the same child. The Department of Corrections applies for the imposition of a 10 year ESO upon Mr Neill’s release from the sentence imposed in respect of that offending.
Background
[3] The relevant offending occurred in April 2009 and involved the one complainant who was the son of a woman with whom Mr Neill was acquainted. He was staying at her house at the time the offences were committed. Prior to this offending Mr Neill already had five previous convictions for sexual offending against young people or children dating back to 1990. In December 1992 Mr Neill was sentenced to two and a half years imprisonment for indecent assaults against both male and female children under the age of 12 years. [....] In 2005 he was sentenced to 18 months imprisonment for committing an indecent act against a young male aged between 12 and 16. It should be noted that as a 16 year old Mr Neill had sexually abused an eight year old girl who lived in his neighbourhood.
[4] In sentencing Mr Neill in October 2009, Harrison J considered the imposition of preventive detention. His Honour noted that it was a finely balanced exercise and that there was a very real risk that Mr Neill would reoffend on his release. Ultimately, Harrison J exercised his judgment in favour of a finite term of imprisonment in the expectation that the Department of Corrections would apply for an extended supervision order on his release. A minimum term of non parole was imposed in the expectation that the authorities would take all possible steps to ensure that a place was found for him in the Kia Marama or some similar programme before becoming eligible for release on parole.
Statutory regime
[5] Section 107I of the Parole Act 2002 articulates the purpose of an extended supervision order as being:
…to protect members of the community from those who, following receipt of a determinative sentence, pose a real and ongoing risk of committing sexual offences against children or young persons.
[6] Under s 107I(2) the Court may make an ESO if satisfied that after considering the matters addressed in a health assessor’s report the offender is likely to commit any of the relevant offences referred to in s 107B(2) on ceasing to be an eligible offender. A relevant offence is defined as including sexual violation and other sexual offences on children and young persons.
[7] A term of an ESO may not exceed 10 years and must reflect the level of risk posed by the offender, the seriousness of the harm that may be caused and the duration, or likely duration of that risk.1
Eligibility
[8] Mr Neill, having been convicted of sexual violation by unlawful sexual connection with a male under 12 years of age is an eligible offender upon whom an ESO may be imposed. Mr Neill was not made the subject of a sentence of preventive detention or a life sentence and presently remains subject to a finite sentence of imprisonment.
[9] The issue to be determined is whether Mr Neill poses a real and ongoing risk to children and young persons. In making that assessment the Court is required to consider a report from a suitable health assessor. In this case the Court has the benefit of a report from a registered clinical psychologist, Ms Gill Roper.
Potential to reoffend
[10] Ms Roper considers Mr Neill’s risk of further reoffending and committing a
further relevant sexual offence while in the community to be high. On the
1 Parole Act 2002, s 107I(4) and (5).
Automated Sexual Recidivism Scale (ASRS), Mr Neill is assessed as being in the medium/high risk category. Mr Neill was found to be in the high risk group on the STABLE-2007 instrument. Other factors relevant to Mr Neill’s risk not directly assessed by those measures include the fact his sexual offending against his child victims began in adolescence, reflecting a long term modus operandi. Secondly, although Mr Neill is now in his sixties it is observed that, given the recency of his index offending, age is not considered a protective factor in this case. Ms Roper concludes:
It is considered that there is a high risk that Mr Neill will engage in relevant sexual offending involving sexual assault within 10 years of release if the following identified risk factors remain present: his deviant sexual interest in pubescent boys, hostility towards others, particularly when providing Mr Neill with constructive feedback, and little insight into high risk situations. Any further sexual reoffending is likely to place male adolescents, with whom he has some degree of relationship, at risk of indecent assault or rape. Notwithstanding, given his earlier sexual abusive behaviour towards young girls, risk of sexual assault against female children cannot be discounted.
Nature of any likely sexual offending including the age and sex of likely victims
[11] It is considered that Mr Neill would most likely offend against pubescent or early pubescent boys. There however remains a potential risk of Mr Neill sexually offending against female children given his earlier sexually abusive behaviour. It is likely the reoffending would involve boys with whom Mr Neill has some degree of relationship with through friends, neighbourhood children or working environments. It is most likely that Mr Neill will engage in a short period of grooming of the children to whom he may have access.
Offender’s ability to control sexual impulses
[12] Ms Roper considers that Mr Neill has a poor ability to control his sexual impulses. He began sexual offending while an adolescent and this has continued over a 40 year period. In the course of the current assessment Mr Neill is reported as requiring prompting with coping strategies for deviant sexual arousal and his skills in that regard remain untested outside a structured prison environment. It is reported that Mr Neill has yet to complete the practical component of the arousal reconditioning module and this is cited as being indicative of a lack of genuine
motivation to address his deviant sexual interest. It is considered he has a limited ability to manage his sexual impulses.
Offender’s predilection and proclivity for sexual offending
[13] Mr Neill has a demonstrated pattern of deviant sexual interest in pubescent boys and an earlier deviant sexual interest in female children. Ms Roper reports that Mr Neill does not appear to have a clear understanding of the risk-related patterns inherent in his interpersonal style. This coupled with the other factors means his predilection and proclivity for sexual offending will remain high.
Offender’s acceptance and responsibility for remorse for past offending
[14] Mr Neill is reported as having developed a superficial understanding of what causes him to offend. A tendency to intellectualise and respond to constructive feedback in a hostile and reactive manner is said to have hindered his ability to honestly reflect on the choices he made to sexually offend. Ms Roper observes that in the absence of honest introspection and a clear understanding of his “offence process”, Mr Neill’s articulated acceptance of responsibility for his sexually abusive behaviour appears to be superficial. He does not appear to have a genuine appreciation of the harm his actions have caused.
Other relevant factors
[15] Mr Neill has previously received psychological intervention for his sexually abusive behaviour. Between 2007 and 2008 he had 33 sessions with a Departmental psychologist to address his sexual offending and anxiety. Mr Neill subsequently sexually reoffended despite this intervention and despite having completed a safety plan. This is said to demonstrate how he failed to implement the strategies he learnt in this context to keep himself and others safe. Ms Roper observes that Mr Neill has struggled to implement behaviour change within the treatment environment and his purported motivation for change is yet to be assessed outside of a prison environment.
[16] Mr Neill has completed the full 39 week Kia Marama treatment programme. While Mr Neill has developed a superficial understanding of his “offence process” it is noted that the absence of consistent behaviour change has resulted in him being assessed as having made insufficient treatment progress to manage his high risk of reoffending. As mentioned, his failure to complete the practical component of the arousal reconditioning model, despite having completed the Kia Marama programme, is indicative of limited motivation which is described as being of concern. Deviant sexual interest is considered a critical link in why Mr Neill offends and therefore directly related to his potential future risk. Mr Neill’s progress in the programme has been described as limited.
Recommendation
[17] Mr Neill is assessed as likely to commit further relevant sexual offences against children and adolescents under the age of 16. He is described as having a poor ability to control his sexual impulses and is believed to continue to have a predilection and proclivity for sexual offences against children. While he reports to have taken responsibility and shown remorse for his offending Ms Roper observes that his presentation during treatment and his current behaviour does not support this.
Is an ESO appropriate in this case?
[18] Having taken Ms Roper’s assessment into account, it remains for the Court to determine whether Mr Neill is likely to commit a relevant sexual offence upon release. The risk of offending must be real, ongoing and one that cannot be ignored having regard to the statutory nature and gravity of the likely offending.2
[19] The information that has been placed before the Court satisfies me that Mr Neill’s risk of reoffending is of that quality. I have no doubt that an ESO must be imposed. Mr Neill is an offender who has repeatedly offended sexually against children and young persons and there is a high risk of repetition post release. Despite the extensive treatment which Mr Neill has completed there are significant
reservations expressed as to its effectiveness and to Mr Neill’s motivation to control
2 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627.
his sexual impulses. It is apparent that he is likely to still have a predilection or proclivity for sexual offending against children. I have therefore concluded that there is a very real risk that Mr Neill will reoffend and likely commit a relevant sexual offence.
Appropriate length of the ESO
[20] It is necessary for me to determine the appropriate length of an ESO against the statutory criteria in s 107I(5) of the Act. This is a separate exercise from the decision to impose the order.3 The length of the ESO is the minimum period 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 a victim and the likely duration of the risk.
[21] Mr Neill began sexually offending during his adolescence and has reported ongoing deviant sexual fantasies since that time. He has reoffended on several occasions despite lengthy periods of incarceration and extensive treatment programmes. In her report Ms Roper states that research indicates that the risk of individuals with Mr Neill’s assessed risk level remains stable over a period of time. She advises that the risk would remain over a 10 year period and for that reason recommends that the maximum length available under the legislation be imposed. That expert recommendation is one that in the absence of any contrary view I am obliged to respect. Given Mr Neill’s high and stable risk of reoffending, the psychologist’s assessment of his proclivity for sexual offending against children particularly pubescent boys and the harm that would be caused to them, I consider the appropriate term of an ESO is 10 years.
Conclusion
[22] Accordingly it follows that I make an extended supervision order and fix
10 years as the duration of the order. That order will come into force on Mr Neill’s
statutory release date of 22 October 2014. Mr Neill will be served with a copy of the order today which will include the standard conditions provided for in s 107JA of the
3 R v Peta, above.
Parole Act 2002 and will provide for any conditions which may be considered appropriate by the Parole Board.
Solicitors:
Raymond Donnelly & Co, Christchurch
Simon Shamy, Christchurch
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