Chief Executive of the Department of Corrections v Barton

[2018] NZHC 777

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-419-81

[2018] NZHC 777

BETWEEN

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant

AND

TYSON MATAROA BARTON

Respondent

Hearing:

19 March 2018

Further submissions: 29 March and 11 April 2018

Appearances:

ML Dillon for Applicant Respondent appearing in person

Judgment:

23 April 2018

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 23 April 2018 at 4.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Department of Corrections v Barton [2018] NZHC 777 [23 April 2018]

Introduction

[1]    The Chief Executive of the Department of Corrections has applied for an extended supervision order (ESO) with an intensive monitoring condition and an interim supervision order (ISO). The duration of the ESO sought is 10 years. The respondent, Mr Barton, does not oppose the making of the ESO with an intensive monitoring condition, however, it is necessary that the Court is satisfied that the statutory requirements for the making of such orders have been met under s 107I(2) and to consider whether an intensive monitoring condition should be imposed under s 107IAC of the Parole Act 2002 (“the Act”).

Background

[2]    Mr Barton’s history of sexual offending includes unlawful sexual connection with a male under 12, permitting or inducing a boy of 12 to 16 to do an indecent act, two others of doing indecent acts on boys and indecent assault of girls under 12.

[3]    On 25 June 2014, Mr Barton indecently assaulted a 20-year-old female. He was sentenced on 6 October 2014 to a period of two years imprisonment for a historic offence of committing an indecent act on a three-year-old boy and a further ten months for the indecent assault cumulative on the two years.

[4]    On 5 June 2015, Mr Barton was sentenced to two years and eight months’ imprisonment for 30 charges of possessing objectionable material (“the most recent offending”), while he was subject to the ESO. He used his mobile phone to access child pornography. As the sentence of imprisonment was imposed for a qualifying sexual offence, he was automatically placed on the “Child Protection Register”. On 31 January 2018, he was released from prison.

[5]    Mr Barton is already the subject of an ESO for a term of 10 years made on 3 February 2010. Although there is an ESO in force, that order does not include a condition of intensive monitoring. On 19 January 2018, the applicant applied for an interim supervision order, with intensive monitoring, to bridge the gap in time between Mr Barton’s release from prison and the hearing of this application. From that date, Mr Barton has been subject to intensive monitoring on an interim basis. This has

prompted the Chief Executive to make an application for a new ESO with intensive monitoring imposed upon the respondent completing his most recent sentence.

Eligibility

[6]    Mr Barton is eligible for an ESO under s 107B(3) of the Parole Act (“the Act”) because his most recent offending resulted in a sentence of imprisonment under the Films Videos & Publications Classification Act 1993. His most recent offending satisfies all three subsections of s 107B(3) of the Act as it promotes the exploitation of children for sexual purposes, depicts sexual conduct with or by children and exploits the nudity of children. Mr Barton, therefore, meets the definition of eligible offender in s 107C of the Act as he has been sentenced to a term of imprisonment for a relevant offence and has not ceased to be subject to an ESO.

Extended supervision order

[7]    Before a Court can make an ESO it must be satisfied of the two limbs of s 107I(2) the Act. In Mr Barton’s case, the Court must be satisfied having considered the matters addressed in the health assessment report (“the report”) that the offender has a pervasive pattern of serious sexual offending1 and there is a high risk that the offender will commit a relevant sexual offence in future.2

Pervasive pattern of serious sexual offending

[8]    Mr Barton’s history of previous sexual convictions alone discloses a pervasive pattern of serious sexual offending. It is notable that all of these are included as “relevant sexual offences” in s 107B(2) of the Act, therefore, offences which make an offender prima facie eligible for an ESO.

[9]    As for the existence of a “pervasive pattern”, Muir J considered the meaning of this phrase to “suggest that the previous offending must have characteristics so prevalent and common as to provide a reliable predictor of relevant future conduct”.3

1      Parole Act 2002, s 107I(2)(A)

2      Section 107I(2)(b)(i).

3      Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [46].

In the report, the registered psychologist, Mr Todd-Downing, describes Mr Barton as having displayed sexually inappropriate behaviour from a young age. He is also described as having an enduring interest in 14–15-year-old males, although his victims of sexual offending have included both males and females under the age of 12. A theme of the report is Mr Barton’s “sexually deviant lifestyle”, “sexual preoccupation” and “sexual compulsivity”. Mr Todd-Downing notes his history of non- responsiveness to treatment which is evidenced by the offences committed despite close supervision and more intensive monitoring. Mr Barton’s pattern of sexual offending, typically involving children, shows impulsivity and poor regulation of sexual urges. I am satisfied that his previous convictions for serious sexual offending amount to a pervasive pattern.

High risk of future relevant sexual offending

[10]   A Court may only be satisfied that there is a high risk of the eligible offender committing a relevant offence if it is satisfied that the offender meets each of the factors in s 107IAA of the Act. For the purposes of assessing the mandatory statutory criteria under that section I address, in turn, the conclusions made by Mr Todd- Downing in the report.

Displays an intensive drive, desire or urge to commit a relevant sexual offence

[11]   Mr Barton is described as sexually preoccupied and compulsive. Mr Barton himself has acknowledged his ongoing difficulty managing sexual preoccupation and inappropriate thoughts. He has acknowledged also that, despite his knowledge and understanding of relevant techniques, he has “no ability” to manage his thoughts on his own.

Predilection or proclivity for serious sexual offending

[12]   Mr Barton has a high proclivity for sexual offending. He is assessed as being high in sexual deviancy which is informed by his sexually deviant lifestyle, sexual compulsivity, planned aspects of his sexual offending and deviant sexual preferences. His disorderly behaviour conviction in 2010 involved him approaching and

photographing young children in a playground which, in Mr Todd-Downing’s opinion, is strongly suggestive of a sexual motivation. He has also been found with images of young teenage boys and stories depicting sexual exploits with children.

[13]   The report notes that Mr Barton does evidence a predilection for serious sexual offending. This reflects his sexual interests as well as greater emotional congruence with younger people and intimacy deficits being a feature of his relationships with age appropriate males.

Limited self-regulatory capacity

[14]   In Mr Todd-Downing’s opinion, Mr Barton’s self-regulatory capacity is significantly under-developed and of particular concern is his inability to regulate deviant sexual arousal. The report notes that Mr Barton has developed a range of unhelpful strategies for managing unpleasant emotions that includes self-injurious behaviour, substance misuse and sexual preoccupation. He has “limited self-efficacy” and he himself sees continuing supervision and intensive monitoring as essential to prevent further offending.

Lack of acceptance of responsibility and remorse for past offending

[15]   Mr Barton does not accept responsibility for all his past offending. The report notes that he does have limited remorse for his offending, however, it is not focussed on how he has affected his victims.

Absence of understanding for or concern about the impact of the offender’s sexual offending on actual or potential victims

[16]   Mr Barton’s ability to emotionally identify with the feelings and experiences of others, including his victims, is described as under-developed.

Summary

[17]   Mr Barton is considered to be at a high or possibly very high risk of committing a further relevant offence in the community. Furthermore, there is a very high risk

that he will engage in relevant sexual offending within 10 years of him being released from prison. He has not made sufficient progress in treatment where he is able to manage the risks he presents without external monitoring and management.

[18]   The purpose of an ESO is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual offending.4 In this case, I consider Mr Todd-Downing’s opinion on each of the s 107IAA(1) factors as well supported by the evidence of the respondent’s past conduct. Accordingly, I accept the assessment that Mr Barton has an intense drive, desire or urge to commit a relevant sexual offence; a predilection or proclivity for serious sexual offending; limited self-regulatory capacity; and a lack of concern for his victims.

Duration of order

[19]   The supervision order may not exceed 10 years. The term of the order must, however, be the minimum period required for the purposes of the safety of the community. For the reasons I have traversed, and consistent with the professional opinion of the risk Mr Barton presents to the community, I am satisfied of the continuing long-term need for him to be managed and supervised. Accordingly, I accept it is appropriate for the ESO to be made for a period of 10 years.

Intensive monitoring condition

[20]   An intensive monitoring condition is a condition requiring an offender to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the chief executive, to undertake person-to-person monitoring.5 There is no statutory test regarding the imposition of intensive monitoring, however, it will only be imposed where the risk is considered to be very high and where offenders are considered to need external controls to mitigate their risk.6 I accept that due to the high risk that Mr Barton presents and given the relevant offending that arose while an ESO was in place, it is appropriate that he be

4      Parole Act 2002, s 107(1).

5      Section 107IAC(2).

6      Chief Executive of the Department of Corrections v Paul [2017] NZHC 1294 [13 June 2017].

the subject of intensive monitoring for the full 12 month period, being the first 12 months of the ESO.

Interim supervision order

[21]   Mr Barton has been subject to an ISO with an intensive monitoring condition from 19 January 2018. Pursuant to s 107FA(6) an ISO ceases to have effect when the application for an ESO is finally determined. Interim intensive monitoring against Mr Barton is sought until the New Zealand Parole Board (“the Parole Board”) can impose the intensive monitoring condition subject to the following orders.

[22]   There is no statutory test that must be satisfied before the Court can make an ISO, however, it is necessary for the Court to decide whether it is justified to impose temporary restrictions on Mr Barton pending the imposition of an intensive monitoring condition by the Parole Board.7 I am satisfied that there are sufficient grounds for the ISO application until such time as the Parole Board is able to impose an intensive monitoring condition.

Orders

[23]   Mr Barton is subject to an ESO on conditions imposed in accordance with s 107JA of the Act for a period of 10 years commencing today.

[24]   Mr Barton is subject to an intensive monitoring condition which the Parole Board must impose pursuant to s107IAC of the Act. The duration of the intensive monitoring condition is 12 months commencing on the date of the ESO pursuant to s 107K(3)(ba) of the Act.

[25]   Mr Barton is subject to interim intensive monitoring pursuant to s 107IA(1) of the Act, to endure until the above order for intensive monitoring is imposed by the Parole Board.

7      Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [34].

[26]   The extended supervision order made against Mr Barton on 3 February 2010 is expired in accordance with 107L(3)(c) of the Act.

………………………….

Toogood J