Chief Executive of the Department of Corrections v Belcher HC Auckland CRI 2004-404-444

[2005] NZHC 1726

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004-404-000444

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Applicant

v

JOSEPH RONALD BELCHER

Respondent

Hearing:         12 April 2005 Appearances: M T Davies for Applicant

M A Edgar for Respondent Judgment:  22 April 2005

JUDGMENT OF KEANE J

Solicitors

Crown Solicitor, Auckland

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS V JOSEPH RONALD BELCHER HC AK CRI 2004-404-000444 [22 April 2005]

[1]        On 9 February 1996 Joseph Belcher was sentenced to ten years imprisonment for kidnapping and seven years imprisonment, concurrently, for indecent assault of, a ten year old girl. He was released on 14 November 2001, and remained subject to standard conditions of release until 13 November 2003. He was liable to be recalled to prison to continue serving his sentence until 17 December 2004. On 15 October 2004 the  Chief  Executive  of  the  Department  of  Corrections  applied  to  have  Mr Belcher made subject to an extended supervision order under s 107F of the Parole Act 2002.

[2]        There is no issue that Mr Belcher lies within the category of a ‘transitional eligible offender’: s 107Y. The indecent assault of the girl constitutes, for the purpose of this application, a ‘relevant offence’: s 107B(2). There is no issue that the Chief Executive is able, as he has by his delegate, the ability to apply under s 107F for an extended supervision order.

[3]        The issue is whether such an order is justifiable, and if it is, whether it should, as applied for, extend for the maximum term of ten years.

Discretion

[4]Section 107I defines the Court’s task, and the form of order contemplated:

(1)The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing sexual offences against children or young persons.

(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(2), that the offender is likely to commit any of the relevant offences referred to in section 107B(2) on ceasing to be an eligible offender.

(3)      …

(4)Every extended supervision order must state the term of the order, which may not exceed 10 years.

(5)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.

Essential issue

[5]        The issue, posed by s 107I(2), is essentially whether Mr Belcher is ‘likely’ to commit any ‘relevant offence’ – that is any one of the sexual, or sexually related offences, against children and young persons, prescribed by the Crimes Act 1961.

[6]        The section is not more prescriptive but relevant to the exercise of the discretion must be those matters, which s 107F requires a ‘health assessor’ to address:

(a)The nature of any likely future sexual offending by the offender, including the age and sex of likely victims:

(b)The offender’s ability to control his or her sexual impulses:

(c)The offender’s predilection and proclivity for sexual offending:

(d)The offender’s acceptance of responsibility and remorse for past offending:

(e)Any other relevant factors.

[7]        The issue, as posed, imposes no onus of proof on the Chief Executive. As the Court of Appeal said in R v Leitch [1998] 1 NZLR 420, when speaking of the sentence of preventive detention, “the need to be ‘satisfied’ calls for the exercise of judgment by the sentencing Court”: see also Chief Executive Department of Corrections v McIntosh (HC Christchurch CRI 2004-409-162, 8 December 2004). The Chief Executive will, no doubt, wish to be persuasive. The responsibility rests with the Court.

[8]        ‘Likely’ has been interpreted, elsewhere in the Parole Act, as meaning ‘something that may well happen’: Secretary for Justice v M (1990) 6 CRNZ 57, Thorpe J; an interpretation I gratefully adopt.

Offence history

[9]        Mr Belcher’s offending began in 1970, and until 1983, while persistent, and varied, was not sexual. In January 1984 he was fined $150 for lurking, loitering and peering into a dwelling. In 1986 he was sentenced to a community programme for six months for an indecent act with intent to insult a male. In September 1986 he was sentenced to 80 hours community service for obscenely exposing himself in public. He continued to offend more variously until 1989, when his sexual offending escalated sharply.

[10]      In early February 1989, Mr Belcher was sentenced to three months imprisonment for obscenely exposing himself and for being unlawfully in a building. In late February he was sentenced, effectively, to seven years imprisonment for 17 offences, a number of which were sexual. In June 1989 that sentence was sustained on appeal.

[11]The Court of Appeal, in its decision, described Mr Belcher’s offending thus:

On the afternoon of 16 January 1989 at Bowentown on two separate occasions Belcher masturbated himself in front of school age children. In the small hours of the following morning at three separate camping grounds in the Waihi Beach and Bowentown areas he broke into caravan awnings of holiday campers by cutting through or undoing part of the awning. In one case he attempted to do so and in another he entered the caravan with intent to commit a crime. His object was to fondle children there. During the incidents he indecently assaulted two young children and attempted to indecently assault two others. He also persuaded an eight year old girl to walk away with him towards the beach, but when called for she ran back. Six months earlier, on 31 July 1988, Belcher entered a ward at the Tauranga Public Hospital around 2 a.m. in the morning and fondled the genitals of a young woman patient who was asleep there. The remaining charge before the High Court related to a police search of Belcher’s address on 11 November 1988 in the course of which they found 800 grammes of cannabis leaf. He admitted having possession for supply.

It is apparent from the victim impact reports that, as would in any event be expected, the children asleep in the caravan awning the actual or intended subjects of his intentions, and their families, have suffered considerably in the result, as has the young woman indecently assaulted in her hospital bed. This can only be characterised as very serious offending.

[12]Also pertinent is what the Court had to say about Mr Belcher himself:

He told the probation officer that he had little memory of the events at the camping grounds, that he was under some stress at the time arising from the breakup of a de facto association, that he was sorry for what he had done, adding ‘just touching – not meaning to hurt anyone – childish’, and that he wanted to overcome the problems that beset him. The sentencing Judge also had before him a report from a psychiatrist who had examined Belcher. In that report the psychiatrist referred to a long history of sexual problems, particularly in relation to touching young boys and girls and sexual urges which Belcher could not control. The psychiatrist concluded that Belcher was not under any psychiatric disability, but considered he was suffering from an anti-social personality disorder, together with a psychosexual disorder, Froteurism, toucherism, voyeurism and probably paedophilia.

[13]      Especially pertinent in the psychiatrist’s report, dated 22 February 1989, which had been prepared for the purpose of sentence, is this:

Mr Belcher intimated to me that he had sexual problems since about the age of 12, in that he got sexual pleasure out of touching the genitals of boys or girls while they were asleep, following which he would masturbate. Apparently he also enjoys ‘peeping’ and masturbating in public, sexual urges that he apparently cannot control.

[14]      Having served the sentence imposed, and after three years in the community, Mr Belcher offended again in a strikingly similar way. At 3.20 am on 3 March 1995, at a Tauranga caravan park, where Mr Belcher was staying, after an hour with a prostitute, with whom he had attempted apparently unsuccessfully to have intercourse, he kidnapped and indecently assaulted the ten year old girl.

[15]The statement of facts against which Mr Belcher pleaded said this:

The accused then walked to a caravan parked at site 41 … He broke into the caravan awning by opening the closed doors. The caravan and awning were occupied by the complainant and her family who were on holiday in Tauranga.

Directly inside the awning door the accused located the complainant … , aged 10 years, who was asleep on a camp stretcher. He knelt down beside her head and shone his torch on to her face.

The complainant awoke due to the light in her eyes and then felt a wet substance splash on to her face. She went back to sleep.

The accused removed her from her sleeping bag and carried her bodily out of the caravan awning toward his cabin which was 16 metres away.

After a short period of time the complainant awoke, to find herself being carried by the accused, from near his car, back towards her caravan awning. The accused was heard to say ‘I’ve got to take her back’ several times over.

The accused carried the complainant back into the awning and placed her back on her camp stretcher before running off. … A forensic examination of genital swabs taken from the complainant revealed the presence of sperm. No evidence of vaginal penetration was located.

[16]The Judge described the offence and the effect on the child thus:

… you came as a thief in the dead of night to where a 10 year old girl was sleeping and you literally plucked her from the bosom of her slumbering family. You then took her to your cabin and there indecently assaulted her. Mr Belcher, I want to tell you I am completely satisfied the actions which you took with that girl, or really child, went much further than as I see in the psychiatric report, you say you looked at her naked, because the subsequent tests indicate the presence of semen about the private parts of her body. Having assaulted her you then returned her to the campsite from whence you had originally taken her.

[17]      The Judge said that the effect on the child had been considerable and lasting. He noted that Mr Belcher had, at that point, 62 previous convictions. He described the psychiatric assessment he had as presenting a ‘chilling picture’ and concluded that Mr Belcher was clearly a risk to the community.

[18]      The Crown submitted, on sentence, that the appropriate sentence was preventive detention. Counsel for Mr Belcher submitted that he was no longer in denial and was open to therapy. The Judge considered that Mr Belcher did ‘undoubtedly qualify’ for preventive detention but in the event imposed the finite sentence, ten years, which concluded relatively recently.

[19]      In this the Judge was influenced by a comment in the psychiatric report that Mr Belcher, though a significant community risk, was not ‘at the most malignant end of the paedophilic continuum’ and, though likely to re-offend within the next five or six years, could be expected after the age of 40, when ‘the incidence of paedophilia drops precipitously’ to cease to be such a risk. The Judge decided that this justified a lengthy finite sentence, not preventive detention, the sentence of last resort.

Assessor’s opinion

[20]      The assessment on which the Chief Executive relies was made by Dr N.J. Wilson, a registered psychologist, and a senior adviser (research) with the

Department of Corrections, on 2 September 2004. In his assessment Dr Wilson reviewed assessments made of Mr Belcher made for sentence, and during sentence, extending back to 1989, perhaps earlier. Using actuarial instruments he measured the likelihood of Mr Belcher’s risk of relevant re-offending by three measures. Finally, he reviewed Department records relating to the last three years during which Mr Belcher has been in the community. He did attempt to interview Mr Belcher, but Mr Belcher chose not to be interviewed.

Departmental assessments

[21]      In 1992, during the seven year term of imprisonment, Mr Belcher completed the Kia Marama Specialist Sex Offender Treatment Programme. He was assessed as highly motivated, and as able to understand what he needed to do to prevent, or avoid the consequence of, any relapse. He was seen still to have difficulty controlling his emotions. He was thought not to be socially competent. There had been crises in the programme when he had asserted his rights as he thought them to be. He was rated still to be at moderate risk of re-offending.

[22]      After the ten year sentence was imposed in 1995 Mr Belcher entered the Te Piriti Specialist Sex Offender Programme, a 40 week programme, but completed eight weeks only. He was removed from the programme. His influence on others and his attitude to staff were thought disruptive. He was assessed as having made only minimal progress. He was rated at high risk of re-offending.

[23]      In 2000 Mr Belcher received individual counselling from a senior psychologist in the Corrections Department, focusing on aggression; also on anxiety, believed to contribute to his sexual offending. He declined to take anti-andronergic medication to reduce his libido. He was concerned about the side effects. The psychologist considered Mr Belcher had learned to manage his depression more successfully. He needed still to learn how to face up to causes of depression, and to cease substance abuse. His unwillingness to use anti-andronergic medication, the psychologist considered, left him exposed to impulse. He remained at high risk of re-offending.

[24]      Finally, between March – June 2001, Mr Belcher underwent further group treatment, to increase his knowledge of sexual function and as to how to control arousal. He was encouraged to develop a safety plan to counter his impulse to offend. He participated actively and was assessed as well aware of his ‘offence chain’. The degree to which he was still at risk of re-offending was not assessed.

Actuarial assessments

[25]      The RoC*RoI measure, the first of the actuarial instruments Dr Wilson used, devised in New Zealand, predicts risk of reconviction and likelihood of re-imprisonment, relying on static factors derived from information held on the Wanganui computer system. This measure, based on a sample of 144,000 criminal histories, from which factors predictive of re-offending were drawn, was applied to a second sample of 38,000, and found to have an overall accuracy of 83 percent for the New Zealand population.

[26]      By this measure Mr Belcher was found to have a high risk of re-conviction, and of re-imprisonment, for serious re-offending, within five years. His long history of offending, the frequency of his convictions, and his four periods of imprisonment for serious offences, were all highly indicative.

[27]      The second instrument, the Static-AS measure, estimates the probability of sexual recidivism, against seven static factors. Mr Belcher’s score was very high, and individuals with similar scores in New Zealand have been found to re-offend sexually within five years of release, the risk increasing over ten years.

[28]      The third measure, the Sex Offender Need Assessment Rating (Sonar), assesses five relatively stable dynamic factors (intimacy deficits, negative social influences, attitudes tolerant of sex offending, sexual self regulation, and general self regulation), and four acute factors (substance abuse, negative mood, anger, and victim access). This measure distinguishes between those who will re-offend and those who will not with moderate success, but Mr Belcher was found to be at very high risk. He scored highly for three of the five stable factors, and all four of the acute risk factors were present.

[29]      Factors that Dr Wilson derived from the file and interview information, which he did not directly assess actuarially, but thought highly relevant, were these:

·     The large number and young age of his previous victims.

·     His first sexual offending occurring when he was adolescent.

·     History   of   diverse   deviant   sexual   behaviours   (e.g.   voyeurism, Froteurism, and exhibitionism).

·     Prominence of hostile beliefs.

·     Poor social competency.

·     Aggressive interpersonal style.

·     High  social  PCL:    SV assessment in 1998 indicating presence of anti-social personality.

·     High levels of reported deviant sexual preferences.

·     High levels of sexual preoccupation.

·     His previous treatment failure.

·     Poor previous response to supervision.

[30]      Relying on those risk factors, and the actuarial measures, Dr Wilson stated the parameters of risk thus:

If Mr Belcher continues to have intimacy deficits, poor social influences, a deviant sexual arousal preference for young children, sexual preoccupation, hostility towards others, little insight into high risk situations, and poor response to supervision; then there is a high probability (high RoC*RoI, Static-AS and Sonar ratings) that he will engage in serious sexual offending involving kidnapping and sexual assault within five years of release that may place stranger female children at risk of indecent assault.

Community assessments

[31]      Since being released three and a half years ago, Dr Wilson noted, Mr Belcher has settled in rented accommodation, which is very ordered and well cared for, but has painted over windows and placed bars over entrances. He is in receipt of the invalids benefit but not obtained work. He has been banned from WINZ, and issued a trespass notice. Hospital staff experienced similar difficulty, when an operation for an injury to his nose had to be delayed.

[32]      Mr Belcher, Dr Wilson noted, has continued to smoke cannabis on a regular basis, and to drink a minimal amount of beer each fortnight. Since 2002 he has not offended sexually. He has acquired convictions for cannabis possession and cultivation, as well as for shoplifting, theft of a motor vehicle and fraudulent use of a document.

[33]      Within months of release, Dr Wilson said, community probation staff noted that Mr Belcher had associated with an array of people involved in ‘underage prostitution, threats, alcoholism, transvestism, manipulation and control.’ Of concern was Mr Belcher’s association with a 15 year old girl, who had been a prostitute. There was no suggestion that he had offended sexually. He had been actively concerned about her welfare. But he had not seen the relationship to be inappropriate, or been willing to step back. He had lacked the insight.

[34]      Mr Belcher, Dr Wilson said, appeared to have limited social support. To manage his risk he seemed to have focused only on the risk of preventive detention. That was unlikely to be effective.

Statutory assessment

[35]      Against that background Dr Wilson made his own assessment, on which the application hinges:

Mr Belcher is assessed as likely to commit further sexual offences against children and adolescents under the age of 12 with his victims likely to be female and strangers. He has a poor ability to control his sexual impulses and is believed to continue to have a predilection and proclivity for sexual offences against children. Mr Belcher was reported in treatment prior to release to have taken responsibility for his offending, learned the skills to manage his risk, and developed better strategies to reduce his aggressive interpersonal style. However, his behaviour since release has not confirmed this, especially his poor response to supervision, aggressive and hostile behaviour, substance abuse, association with anti-social associates, continued non-sexual reoffending, and reported unsupervised relationship with a vulnerable 15 year old girl.

[36]As to the extent of any extended supervision imposed, he added this:

Research indicates that individuals of Mr Belcher’s assessed risk level remain as likely to reoffend over an extended period as they are within a

shorter period. For this reason it is recommended that, if an order is applied (for) it should be for the maximum length available under the legislation, that is ten years.

Contrary opinion

[37]      In a report, dated 1 February 2005, Dr Andrew Moskowitz, engaged to evaluate Mr Belcher in response, after reviewing material relied on by Dr Wilson, drawn from departmental records, principally those since the 1995 sentence was imposed, and having interviewed Mr Belcher in his home for three and a half hours, reached this conclusion:

Several factors need to be considered when judging Mr Belcher’s risk for sexual reoffending in the future. The first, and in my opinion, most important factor, is that there is no evidence that Mr Belcher has sexually offended for almost ten years. Now, while much of that time has been spent in prison, Mr Belcher has been out for almost three and a half years and has not sexually offended. This is despite the fact that he was living with a vulnerable young woman, working as a prostitute, whom he clearly could have sexually assaulted had he wanted to. There is no evidence to suggest that he did. Thus, while his association with this troubled young woman has been painted in a negative light (i.e., inability to remove himself from high risk situations), I would suggest quite the opposite. He acted out of empathy for this young woman (also not typical of psychopathy), and did not sexually offend despite being in – without doubt – a high risk situation. That speaks strongly toward his potential to refrain from sexually offending.

[38]      There were a number of other factors, which Dr Moskowitz regarded as salient and these also deserve to be set out in full:

·     The late onset of the sexual offences. Mr Belcher was not convicted of sexually offending until his 30s. As with all forms of offending, an earlier onset is more strongly associated with high recidivism. This late onset would argue to a lower risk of future offending.

·     The magnitude of the offences. While there is some disagreement between Mr Belcher’s accounts of the sexual offences and the summary of facts, there is no suggestion that Mr Belcher ever engaged in any sexually inappropriate behaviours other than exposing himself, masturbating in front of girls (and possibly a boy), and inappropriately touching females. That is to say he has never attempted to ‘interfere’ with a young girl or woman. In addition, there is no suggestion that Mr Belcher has ever resorted to physical violence in his sexual offending.

·     Adequate functioning when previously released. Mr Belcher, by all accounts, did very well between 1993 and 1995. His offending occurred after a period of depression when his history as a sexual offender was

revealed, essentially sabotaging his work at his brother’s restaurant.

·     Insight into offence cycle. Mr Belcher demonstrated a good awareness of the role of depression and attempts to externally regulate his emotions by sexually offending. Of note, while his expressions of anger can sometimes appear extreme (and even intimidating), there is no evidence that such emotional dyscontrol has any connection to sexual offending.

·     Substance abuse. While abuse of heroin and alcohol appears to have played a role in Mr Belcher’s prior offending, neither are currently an issue for him.

[39]      Concluding, Dr Moskowitz emphasised that Mr Belcher has, in the last three and a half years, lived in the community without offending sexually. He has reached the age of 50 years and sexual offending decreases, Dr Moskowitz said, with age. He ought not, Dr Moskowitz concluded, to be made subject to any extended supervision order, let alone one of the length proposed.

Hearing

[40]      At the hearing, at which Mr Belcher was present, as s 107G(4) requires, Dr Wilson, who had filed an affidavit in reply, and Dr Moskowitz, were extensively cross-examined. Mr Belcher did not give evidence. Instead his counsel, as well as cross-examining Dr Wilson, made carefully considered submissions on his behalf.

[41]      The most significant difference between Dr Wilson and Dr Moskowitz lay in their contrasting opinions as to the relative worth of clinical interviews and actuarial measures. Dr Wilson, whose clinical experience is extensive, considered his inability to interview Mr Belcher of no decisive significance. His opinion as to the risk Mr Belcher presents depended, he said, on well recorded entrenched behaviour, which began when Mr Belcher was only just adolescent, or was even preadolescent.

[42]      The actuarial measures have the distinct value, Dr Wilson considers, of bringing statistical objectivity to bear. A clinical assessment, without more, even one based on good information as there was for Mr Belcher, he said, could be too subjective and imprecise and give too much weight to the immediate and evanescent. He did accept that a clinical interview could assist to understand what is likely to happen over the shorter term.

[43]      Dr Moskowitz, conversely, considers that a clinical interview, informed by rich material, as there is in this case, gives to an experienced clinician an unrivalled insight into what is likely in the short even medium term. Actuarial measures, he stated, while he had no direct experience of those on which Dr Wilson relied, could strait jacket an assessment, and exclude the possibility of fruitful change. Human behaviour, he said, cannot be assessed against static factors alone. Dynamic factors are more potent predictors.

[44]      Despite  Dr  Moskowitz’s  carefully   considered   reservations,   I   accept  Dr Wilson’s assessment of risk. It is founded on a more complete review of Departmental assessments than Dr Moskowitz was able to make. Dr Moskowitz assumed, incorrectly, that Mr Belcher had never actually indecently assaulted his victims.  Dr  Wilson  had  the  advantage  of  the  actuarial   assessments,   which   Dr Moskowitz lacked and could not contest. Dr Moskowitz was unaware of the concerning studies as to duration of risk.

[45]      Dr Wilson may not have been able to interview Mr Belcher, a disadvantage which Dr Moskowitz, a highly experienced clinician, was right to point out. But I cannot myself accept, conversely, that in a single interview Dr Moskowitz could have obtained sufficient reliable information from Mr Belcher to raise any serious doubts about the reliability of Dr Wilson’s multi-faceted assessment.

Conclusions

[46]      To this application, Mr Belcher’s past sexual offending has to be of the first importance. In those offences, which the Courts on sentence and appeal described as of a very serious order, Mr Belcher preyed sexually on the young. He exposed himself, and sometimes masturbated, in front of young children during the day. At night he entered their tents, when they were asleep and were even more vulnerable. He abducted two. He indecently assaulted two. His 1995 offence, one of indecency, could well on the facts on which the Judge sentenced have been more serious than that charged. Semen was found in the vicinity of the child’s genitalia.

[47]As concerning has to be that the 1995 offending, the relevant offending for

the purpose of this application, happened after Mr Belcher had completed the seven year term imposed for the 1998 offences and had been in the community for three years. And it was strikingly similar. Whatever led Mr Belcher to re-offend as he did, and isolation and depression appear to have played a part, the lengthy sentence of imprisonment served not long before, and the Kia Marama programme, proved ineffectual.

[48]      No absolute assurance can be taken, therefore, from the fact that in the last three years Mr Belcher, once again in the community, has not offended sexually, especially as for two of those years he has been under supervision. The issue has to be whether, if he becomes liable to depression again, and is isolated from any objective aid, he may revert.

[49]      Mr Belcher had to leave the Te Piriti programme early, in itself a troubling fact, and the various assessments made of him for sentence, and during sentence, most especially the most recent, and the actuarial assessments, converge, nearly unanimously, in describing Mr Belcher as at high continuing risk.

[50]      Of equal concern has to be the studies, to which Dr Wilson referred, which show that, where an offender has the proclivity to offend sexually, as Mr Belcher has plainly had, that risk first reduces at age 40, but only begins to dissipate in a real sense at age 60. Mr Belcher is aged 50. Even if his life is stable presently, the risk he poses will remain alive for the next ten years.

[51]      How stable Mr Belcher’s life is presently one cannot be sure. Dr Moskowitz and Dr Wilson differ diametrically. Mr Belcher may maintain a well conducted household. His relations with others are by far more significant and much less easy to assess. Perhaps, unsurprisingly, he does not interrelate well with those supervising him, or those responsible for his entitlements. The only relationships he is known to have raise questions. He may well be isolated. He may still be vulnerable to depression. He may no longer be addicted to heroin. That apart, most of the triggers that impelled him to offend so seriously in 1988 and 1995 may still be there.

[52]These several factors, combined, satisfy me, in terms of s 107I(2), that while

Mr Belcher has not offended sexually in the last three years it is likely that, unless supervised, he will commit a relevant offence, and that in that sense he continues to pose a real and ongoing risk to the young. The ten year period of supervision sought, I consider, in terms of s 107I(5), is the only sensible measure. There is no obvious earlier minimum end point. The studies suggest the contrary. There will be the order applied for.

P.J. Keane J