Chief Executive of the Department of Corrections v Broadbent
[2021] NZHC 2920
•29 October 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-352
[2021] NZHC 2920
UNDER Section 107F of the Parole Act 2002 IN THE MATTER
of an application for an extended supervision order
BETWEEN
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
AND
JAMES MANUEL BROADBENT
Respondent
Hearing: 21 and 24 April 2021
Submissions received 4 and 21 May 2021
Appearances:
E J Smith and O R Thomson for Crown
M A Edgar and H S O Aitken for Respondent
Judgment:
29 October 2021
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 29 October 2021 at 4 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: M A Edgar, Auckland
H S O Aitken, Auckland
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v BROADBENT [2021] NZHC 2920
[29 October 2021]
Introduction
[1] This judgment determines an application by the Chief Executive of the Department of Corrections (“Chief Executive”) for an extended supervision order (“ESO”) in respect of the respondent, Mr Broadbent.
[2] The application is made pursuant to s 107F of the Parole Act 2002 (“Act”). The ESO is sought for the maximum permitted duration of 10 years.
[3] An application for an ESO must be accompanied by a report from a health assessor, addressing the matters in s 107F(2A) of the Act.1 In this case, the reports accompanying the application are from Mr F Bauer, a registered clinical psychologist, and are dated 20 July 2020 and 19 April 2021.
[4] Mr Edgar, counsel for Mr Broadbent, opposes the application. He has also filed reports from a health assessor, Ms A Isaacson, also a registered clinical psychologist, dated 12 and 19 April 2021.
[5] Moore J made an interim supervision order (“ISO”) in respect of Mr Broadbent on 22 September 2020.2
Pre-requisites
[6] By s 107F of the Act, the Chief Executive may seek an ESO in respect of an “eligible offender”, as defined in s 107C, at any time before, inter alia, the later of a sentence expiry date and the date the offender ceases to be subject to any release conditions. Accordingly, the first issue is whether the person to be subject to the order is an “eligible offender”.
[7] If so, and having considered the health assessor’s report, the Court must be satisfied that the offender has or has had a pervasive pattern of serious sexual or violent offending (sexual in Mr Broadbent’s case) and that there is a high risk that the offender
1 As defined in Sentencing Act 2002, s 4.
2 Chief Executive of the Department of Corrections v Broadbent [2020] NZHC 2496.
will in future commit a relevant sexual offence. These two matters derive from s 107I(2)(a) and (b) which provide:
107I Sentencing court may make extended supervision order
...
(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.
[8] Section 107B of the Act defines relevant sexual offence as any offence against ss 128 to 144C of the Crimes Act 1961, that is, every offence under the headings “Sexual crimes” and “Sexual offences outside New Zealand”. This includes indecent assault, and indecent acts on a child under 12.
[9] The Court may only determine there is a “high risk” that the offender will in future commit a relevant sexual offence if satisfied of the matters in s 107IAA(1), which provides:
107IAA Matters court must be satisfied of when assessing risk
(1)A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied 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.
[10] In short, if the Court is satisfied as to the requisite pattern and high risk, it has discretion to impose an ESO. That said, it can be expected that cases in which the Court declines to impose an ESO, despite these matters being established, will be rare.3
[11] An ESO, if imposed, must be for the minimum period required for the safety of the community in light of the level and likely duration of the risk posed by the offender, and the seriousness of potential harm to victims.4
Principal points in dispute
[12] The principal points in dispute on this application are whether there is sufficient evidence of the matters in ss 107IAA(1)(a) and (d), that is that Mr Broadbent displays an intense drive or urge to commit a relevant sexual offence, as well as a lack of acceptance of responsibility or remorse for his past offending or an absence of understanding of the impact of his sexual offending on past or possible future victims.
[13] If I find that there is sufficient evidence of these matters, and that the other criteria are satisfied, there is dispute as to the duration of the order to be imposed, and some of the special conditions on which it should be imposed.
Criteria
[14] There is no dispute that Mr Broadbent is an eligible offender as defined in s 107C(1)(a) and that the Chief Executive’s application for an ESO was made in time.5
[15] Given that, I turn to consider whether Mr Broadbent has or has had a pervasive pattern of serious sexual offending and, if so, whether I am satisfied that there is a high risk he will in future commit a relevant sexual offence. It is necessary to have regard
3 Chief Executive, Department of Corrections v Popata [2017] NZHC 2343 at [57].
4 Parole Act 2002, s 107I(5).
5 Section 107C(1)(a).
to the reports of the health assessors on both matters and, of course, their evidence, both having been cross-examined before me.
Offending history
[16] Mr Broadbent is aged 33. His criminal history comprises numerous convictions for driving offences and for failing to answer bail, but he has also been convicted of sexual offending.
[17] Mr Broadbent was first sentenced to a term of imprisonment in January 2007 for wilful trespass, common assault, driving offences and breach of community work. By my reckoning, Mr Broadbent would have been 20 years of age at the time. Mr Broadbent continued to be sentenced to terms of imprisonment thereafter, and not only for sexual offending.
[18] Mr Broadbent’s outright sexual offending comprises two charges of unlawful sexual connection with a boy under 12 and five charges of indecent acts or assaults on a boy under 12. He has committed other offending having sexual “overtones” and, whilst he was in prison pending his latest release, very serious charges were laid against him in connection with matters alleged to have occurred in 2016. The victims or complainants of his proved and alleged offending were all boys aged between eight and 12 years. The details are as follows.
2007 to 2009 offending
[19] Between 2007 and 2009, when Mr Broadbent was aged between 19 and 20 years, he offended against a friend’s younger brother, aged 10 or 11.
[20] On one occasion, whilst staying the night at his friend’s house, Mr Broadbent coaxed the complainant into an empty room, pulled a duvet over himself and the complainant, and forced his penis into the complainant’s mouth.
[21] Early the next morning Mr Broadbent crept into the complainant’s bedroom and inserted the complainant’s finger into his (Mr Broadbent’s) anus whilst the complainant slept.
[22] On an occasion the following year, Mr Broadbent began masturbating in front of the complainant whilst the two were watching television together. Mr Broadbent then instructed the complainant to masturbate him. After several minutes, Mr Broadbent told the complainant he was being too rough, began watching pornography on a computer, and continued masturbating in front of the complainant.
[23] This offending did not come to light for several years. When it did come to light, it was charged as unlawful sexual connection with a male under 12 (x2) and doing an indecent act with or upon a child under 12. Mr Broadbent pleaded guilty to the offending, and was sentenced for it by Judge David Harvey in March 2020.6 This sentencing is referred to below.
2013 offending
[24] The second set of sexual offending comprised three events over the course of an evening in May 2013. Mr Broadbent, then aged 24, was in the process of moving house. He spent the night on a mattress in the lounge, next to the 11 year old complainant who was asleep on a couch.
[25] Mr Broadbent first rubbed the complainant’s legs, asking him to wake up. The complainant did not open his eyes.
[26] Later, Mr Broadbent lifted the complainant off the sofa, put his hand down the complainant’s pants, and rubbed his penis.
[27] Later again, Mr Broadbent again put his hands down the complainant’s pants, and this time squeezed his buttocks and attempted to kiss him. At that point the complainant fled and brought the assaults to his family’s attention.
[28] On 26 November 2013, following a sentence indication, Mr Broadbent pleaded guilty to three charges of doing an indecent act on a child.7 Mr Broadbent was convicted and sentenced to 17 months’ imprisonment.
6 R v Broadbent [2020] NZDC 5210.
7 Police v Broadbent DC Manukau CRI-2013-092-010394, 26 November 2013 at [10].
2015 offending
[29] Between March and April 2015, at the age of 26, Mr Broadbent committed numerous physical assaults against two boys, aged eight and 12 or thereabouts. Mr Broadbent had commenced a relationship with the complainants’ mother.
[30] Ultimately, Mr Broadbent was convicted of 13 charges of assaulting a child, primarily for punching the complainants to the head, arms, and stomach. That said, some of the assaults had sexual overtones, and at least one was initially charged as an indecent assault. For instance, Mr Broadbent punched the complainants in the groin “on a number of occasions”. On another occasion, Mr Broadbent held the older boy’s face to force him to watch a pornographic film, having locked the door so the boy could not leave (as he tried to do).
[31] On 13 November 2017, Judge Johns sentenced Mr Broadbent to 19 months’ imprisonment for this offending.8
[32] Sometime after Judge Johns had sentenced Mr Broadbent, a further offence came to light, committed against a brother of the complainants. Mr Broadbent and this complainant had been lying together on a mattress. Mr Broadbent wrapped his arms around the complainant, before putting his hand down the complainant’s pants and holding his penis. The complainant pretended to be asleep and rolled over to end the assault. This offending was charged as an indecent assault, to which Mr Broadbent pleaded guilty.
[33] On 20 March 2020, Judge Harvey sentenced Mr Broadbent to two years’ imprisonment for both the earliest offending, that is between 2007 and 2009, and this additional 2015 offending.9 The Judge also imposed special release conditions, these conditions expiring in September 2020.
8 Police v Broadbent [2017] NZDC 25732 at [25].
9 R v Broadbent, above n 6, at [8].
Charges withdrawn
[34] Mr Bauer also refers to charges that were brought against Mr Broadbent in 2019, being three of unlawful sexual connection and two of indecent assault, all alleged to have been committed in 2016, against the same boy who was then aged 12. These charges were withdrawn, apparently because of concerns as to the complainant’s mental health, rather than evidential insufficiency.
[35] Mr Broadbent is said to have known the victim through the latter’s brother. In the first instance, it was alleged there was an unlawful sexual connection, followed by further unlawful sexual connections and indecent assaults, accompanied by Mr Broadbent giving the victim marijuana, methamphetamine, and alcohol. Mr Broadbent is said to have ensured the victim’s compliance using threats on at least two occasions.
[36] If this offending occurred, it was a very serious escalation in Mr Broadbent’s sexual offending.
[37] Both experts acknowledged the seriousness of these allegations, although Mr Bauer gave them greater weight than Ms Isaacson. It is permissible for a health assessor, and the Court, to take into account information relating to uncharged offending.10 Clearly, however, the weight to be given to the information will depend on a range of factors, including the reason why charges were not pursued. I propose to give some weight to the allegations in reaching my decision, but they are not determinative.
Health assessors’ reports
[38] This is a convenient place to make some general observations regarding the health assessors’ reports.
[39] The first is that Mr Bauer was hampered by a lack of assistance from Mr Broadbent. Mr Bauer commenced with what turned out to be a 45 minute meeting
10 Parole Act, ss 107F(3) and 107H(2); and W v Chief Executive of the Department of Corrections
[2019] NZCA 460 at [32].
with Mr Broadbent. I say “turned out to be” because Mr Broadbent brought it to a close saying he was feeling unwell, and then did not attend the appointment at which the meeting was to be resumed. As a result, Mr Bauer was required to compile his report on the strength of that limited time with Mr Broadbent, and background materials such as Provision of Advice to Courts reports, summaries of facts, sentencing notes, and a psychiatrist’s report of July 2014.
[40] Mr Broadbent was more co-operative with Ms Isaacson, with whom he attended two meetings. Thus, Ms Isaacson obtained more information from Mr Broadbent, including for example details of a long-term adult relationship. The Chief Executive submits that information sourced purely from Mr Broadbent’s self-report must be taken with a “grain of salt”, in short because he is reported to have said different things to different people. Ms Isaacson herself said in her viva voce evidence that Mr Broadbent was reported as having displayed a tendency to lie and manipulate, so as to avoid punishment.11
[41] Both health assessors found Mr Broadbent reluctant to discuss his sexual offending and what might have motivated it. Ms Isaacson reports that Mr Broadbent said he could not remember much of the offending, due to his having been intoxicated at the time it occurred. This hindered Ms Isaacson’s attempts to explore the drivers for the offending. As Ms Isaacson described it, Mr Broadbent stated his sexual offending was exaggerated but he did not deny that it was wrong. Ms Isaacson’s view is that Mr Broadbent is ashamed of his offending.
[42] Ms Isaacson considers the risk Mr Broadbent presents will diminish over time. As discussed below, she recommends that any ESO be for a maximum of two years’ duration and that an ESO of any longer duration is unnecessary and indeed would be unhelpful to Mr Broadbent’s rehabilitation. Her view is that an ESO of a longer duration, particularly if imposed on onerous conditions, could hinder Mr Broadbent’s reintegration.
[43] Mr Broadbent has not received treatment targeted to his sexual offending. That this has not occurred is of concern, for these reasons. First, when he sentenced
11 Notes of evidence (“NOE”) at 108.
Mr Broadbent, Judge Harvey imposed a special condition that Mr Broadbent was to attend an assessment for a specialist child sex offender programme as directed by his probation officer. I am informed that Mr Broadbent did not receive any treatment because his term of imprisonment was not of sufficient length to render him eligible and, in any event, there is a substantial waiting list to attend such treatment programmes as there are.
[44] Secondly, since his release, Mr Broadbent has expressed a wish to attend the SAFE programme, but now his risk is identified as too high to enable him to do so.
[45] One might expect that if a Judge orders an assessment, that order will be complied with, and one might also expect that if (for good reason) an offender is to be the subject of an application for an ESO, at the very least the treatment that might assist him or her and assist the community will be made available.
[46]I turn now to the relevant criteria.
A pervasive pattern of serious sexual offending — s 107I(2)(a)
[47] Although not a significant point of dispute, the health assessors differed on whether Mr Broadbent has or has had a pervasive pattern of serious sexual offending.
[48] Mr Bauer considers that Mr Broadbent has or has had such a pattern, that pattern being to befriend a person who provides access to a boy about the age of 10 years, and then to offend sexually against that boy.
[49] Ms Isaacson considers Mr Broadbent’s offending to be opportunistic, committed at times when he is disinhibited due to intoxication and finds himself alone with boys of a certain age — an age at which Mr Broadbent reports that he himself was abused by an adult male. Ms Isaacson detects no evidence of predatory or grooming behaviour, considers that Mr Broadbent does not display paedophilic or other deviant sexual interests, observed no evidence of attitudes or beliefs supportive of deviant sexual interests and/or sexual preoccupation, and that Mr Broadbent is able to identify the proper role of an adult in relation to children. Ms Isaacson’s view is that Mr Broadbent has adult appropriate sexual interests, that he has been in
consensual relationships, and that he has been in situations in which he might have offended, but did not.
[50] Having regard to Mr Broadbent’s criminal history, and taking into account the views of the health assessors, I am satisfied that Mr Broadbent has had a pervasive pattern of serious sexual offending.
[51] Between 2007 and 2015 Mr Broadbent committed sexual offences against three boys of about the same age, all in domestic settings and, as I have said, some of the offences charged as assaults also had sexual overtones. The number of occurrences, and the similarities between them, is sufficient to establish a pervasive pattern, regardless of the circumstances in which the offending occurred.
[52] Moreover, the offending qualifies as “serious” sexual offending. Apart from the indecent assaults, the offending of which Mr Broadbent was convicted comprises two charges of unlawful sexual connection with a child. Clearly, the matter is put beyond any doubt if the allegations as to what occurred in 2016 are correct.
[53]I am satisfied that this requirement is met.
Is there a high risk that Mr Broadbent will in future commit a relevant sexual offence — ss 107I(2)(b)(i) and 107IAA(1)
Displays an intense drive, desire or urge to commit a relevant sexual offence
[54] As Ms Smith for the Chief Executive submitted, although this pre-condition is expressed in the present tense, it is not necessary that it be manifested at the time the application for the ESO is determined. The issue is whether the Court is satisfied that the offender currently possesses the relevant trait or behavioural characteristic, such that it might manifest itself in particular circumstances.12 The Court is likely to be satisfied that a previously existing trait or characteristic subsists in the absence of information to suggest that it does not.
12 Chief Executive of the Department of Corrections v CJW [2016] NZHC 1082; and Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468.
[55] As I said above, the experts disagree on whether Mr Broadbent displays this characteristic.
[56] Mr Bauer is satisfied that Mr Broadbent has displayed an intense drive or urge to commit a relevant sexual offence when the opportunity has arisen. Mr Bauer bases this opinion on the circumstances surrounding Mr Broadbent’s prior convictions for sexual offending. Mr Bauer considers Mr Broadbent can be seen to have placed himself into homes or relationships in which there were potential victims, that there is evidence of a degree of grooming or planning, and that the behaviour has persisted over, and been a consistent feature of, Mr Broadbent’s adult years when resident in the community.
[57] Ms Isaacson is not persuaded as to the existence of the required drive. She does not consider there to be clear evidence of predatory or grooming behaviour. Ms Isaacson does not detect a deviant sexual drive but, rather, as I have said, considers the offending has been opportunistic and committed during times of intoxication. Mr Broadbent does not display a determination to re-offend, which Ms Isaacson has observed in others.
[58] Notwithstanding this difference in view, I am satisfied this requirement is met, for these reasons. The first is that, opportunistic or not, and intoxicated or not, as I have said, Mr Broadbent has committed serious sexual offending on three separate occasions over an eight year period. That to me indicates that Mr Broadbent was then subject to an intense drive to offend. I am not persuaded that drive has presently ceased to exist. It is not necessary that an offender be at the extreme end of the spectrum that Ms Isaacson identified before he or she can be said to display an intense drive. Nor is the fact that past offending has been the product of opportunity and intoxication of any particular consequence in this case. Opportunity and intoxication are not unusual features of offending of this nature and such circumstances may well, and indeed can be expected to, present themselves again.
[59]I am satisfied this requirement is met.
Has a predilection or proclivity for serious sexual offending
[60] Mr Bauer’s opinion is that Mr Broadbent has a proclivity for serious sexual offending against prepubescent/pubescent boys if the opportunity presents itself, particularly when he is disinhibited due to the consumption of alcohol or methamphetamine. Mr Bauer also apprehends Mr Broadbent has a possible predilection for sexual offending against 10 to 12 year old boys, given what Mr Bauer considers to be Mr Broadbent having deliberately placed himself in circumstances of opportunity.
[61] Ms Isaacson considers Mr Broadbent currently presents some proclivity (or inclination) but not a predilection (preference or particular liking) for serious sexual offending. In her opinion it would be reasonable to conclude that Mr Broadbent has an underlying proclivity to offend sexually against pubescent male victims, a matter which may change if Mr Broadbent is able to abstain from substance abuse in the long term.
[62] On the basis of the experts’ opinions, and Mr Broadbent’s relevant criminal history, I am satisfied that Mr Broadbent presently has a proclivity and predilection for serious sexual offending against young boys, which he may indulge when the opportunity arises and when intoxicated.
Has limited self-regulatory capacity
[63] Mr Bauer assesses Mr Broadbent as having a tendency towards impulsivity in general, as he seems often to act on impulse, without regard to consequences. This appears from the range of offences Mr Broadbent has committed, his speed of re-offending, and his inclination towards substance abuse.
[64] Ms Isaacson agrees Mr Broadbent’s self-regulatory capacity is compromised. This is because Mr Broadbent has a degree of intellectual impairment, and substance abuse further impairs his ability to self-regulate.
[65] I accept this evidence. As Mr Bauer says, Mr Broadbent’s limited self-regulatory capacity has manifested itself in what appears to be somewhat spontaneous offending generally. This requirement is made out.
Displays a lack of acceptance of responsibility or remorse for past offending or an absence understanding for or concern about the impact of his sexual offending on actual or potential victims
[66]The experts also differ on this issue.
[67] Mr Bauer considers Mr Broadbent’s acceptance of responsibility for his past offending has been superficial, with no indication of remorse, and that he lacks understanding for or concern about the impact of his offending on victims, actual or potential.
[68] That said, Mr Bauer acknowledges that it is difficult to test the depth of Mr Broadbent’s acceptance of responsibility, or remorse, or understanding absent targeted treatment. Moreover, Mr Broadbent declined to discuss his sexual offending with Mr Bauer, other than to say he had already accepted responsibility, had “no feelings” about it, and that he “just want[ed] it over with”.
[69] Ms Isaacson’s view is that Mr Broadbent accepts responsibility for his sexual offending, expresses appropriate shame and remorse, and that his reluctance to discuss or disclose that offending derives from that shame and a fear of rejection. Ms Isaacson’s opinion is that Mr Broadbent evidenced, to her at least, “adequate understanding and concern regarding the impact of his sexual offending on actual and/or potential victims”.
[70] Mr Broadbent offended against young boys in fairly quick succession. There was no acceptance of responsibility at the time, or at least nothing at a sufficient level to cause him to desist, and I am not persuaded that, since then, Mr Broadbent has displayed an acceptance of responsibility or remorse or understanding of the consequences, so as to give any comfort that he will not do likewise again if the right circumstances present themselves. Ms Isaacson herself has not identified more than
“adequate” recognition of the consequences of his offending. I am satisfied this requirement is met.
Assessment of risk
[71] I turn now to the overall question of whether I am satisfied there is a high risk that Mr Broadbent will in future commit a relevant sexual offence.
[72]I am satisfied that there is such a risk for these reasons.
[73]First, Mr Broadbent has the traits or characteristics specified in s 107IAA(1).
[74] Secondly, Mr Bauer and Ms Isaacson each carried out assessments of the risk that Mr Broadbent presents of future sexual offending. Some of these assessments are based purely on static risk factors, these being factors unable to be changed by individual effort (such as prior offending). Others rely on both static and dynamic risk factors, a dynamic factor being one potentially changeable by the individual concerned. As to the latter, differences can, and in this case did, arise between the factors considered relevant to the assessment and in the rating or weight ascribed to them by the individual assessor.
[75] What can safely be said, however, is that at present both experts assess Mr Broadbent as presenting a “well above average” risk of sexual offending.
[76] It is more difficult to assess when that risk might abate. Ms Isaacson’s evidence was that the long-term prediction of risk is inherently problematic, and that risk assessment measures have only moderate (75 per cent) predictive accuracy and are themselves subject to revision from time to time. Ms Isaacson also gave evidence that behavioural treatment programmes have proved effective in reducing recidivism and, moreover, that desistence from sexual re-offending is the norm as offenders age, treatment or no treatment.
[77] All of these points seem to me material to the duration of the ESO. However, the important point at this stage of the analysis is whether I am satisfied Mr Broadbent poses a high risk of future sexual offending, and I am satisfied that he does.
[78] As to any future sexual offence being a “relevant” one, Mr Broadbent already has several convictions for relevant sexual offending which, as I have said, need not be more than an indecent assault. I would expect any future sexual offending by Mr Broadbent to be of at least that seriousness.
[79]Accordingly, I am satisfied that I may and should impose an ESO.
Duration
[80] This brings me to the duration of the order and the conditions on which it is to be imposed.
[81]In [11] above I referred to s 107I(5), which provides:
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.
[82] I referred above to the experts’ assessments of the risk of future sexual offending by Mr Broadbent. Although both agreed that Mr Broadbent presents a well above average risk, their views as to the percentage likelihood of sexual offending over a five and 10 year period differed considerably.
[83] For instance, on the basis of Mr Broadbent’s Static-99 and VRS-SO13 score, coupled with Mr Broadbent’s lack of targeted treatment, Mr Bauer calculates Mr Broadbent’s likelihood of future sexual offending at 52.3 per cent (with treatment) upwards and 65.3 per cent (again with treatment) upwards, over five and 10 years respectively. Ms Isaacson’s scores were 18.9 per cent and 28.7 per cent respectively. These vastly different results, no doubt reflecting matters of judgement, make it impossible to predict the precise degree of risk that Mr Broadbent presents.
13 Violence Risk Scale: Sexual Offender Version.
[84] Mr Bauer’s evidence is that it will take more than 10 years for Mr Broadbent’s level of risk, as it appears from the risk assessment tools, to reduce to “average”.14 Mr Bauer considers that at present there is no reason to think Mr Broadbent’s level of risk will diminish more quickly as, on Mr Bauer’s view of it, Mr Broadbent is yet to take any real action to address his offending.15 Mr Bauer also notes that further, non-sexual, offending will increase the risk, and Mr Broadbent has committed some minor (not sexual) offences since his release.16
[85] I did not understand Ms Isaacson to dispute that the application of the risk assessment tools would suggest that 10 years would be required to reduce Mr Broadbent’s risk to average. However, Ms Isaacson’s evidence was that, if an ESO were imposed, it should be of short duration, that is two years. I have already referred to her evidence as to the limitations of the risk assessment tests; the correlation between desistence and increasing age; and the effectiveness of evidence-based, well-structured and cognitive behavioural treatment programmes, such as the SAFE programme, in reducing the likelihood of future sexual offending. In addition to these matters, dynamic factors can now been seen to be operating in Mr Broadbent’s favour. Ms Isaacson considers Mr Broadbent to be motivated to engage in treatment; that she perceives he is maturing; and, in her opinion, Mr Broadbent’s sexual deviance would be considered “in remission” if he was able to manage two years of living in the community without committing a sexual offence.17 Two years is the period within which behavioural change can be observed.
[86] In addition, there are encouraging features of Mr Broadbent’s current presentation. Since his release, Mr Broadbent has been employed in a café, has displayed a strong work ethic, and has put his leisure time to good use. Mr Broadbent is said to be engaging with his probation officer of his own initiative. Mr Broadbent has also re-engaged with his mother, stepfather, and sister, all of whom are supportive of him. As at the date of the submissions, Mr Broadbent has not tested positive for methamphetamine since late 2020. Moreover, Mr Broadbent had self-referred for, and
14 NOE at 45.
15 At 46.
16 At 45.
17 At 84.
attended an assessment for, a Care NZ Drug and Alcohol programme, although disappointingly he did not attend the programme.
[87] Ms Smith argued for an ESO of 10 years’ duration, with Mr Broadbent able to revert to the Court to have the order discharged at an earlier time. Mr Edgar’s fundamental submission was that an ESO was not required. However, on the basis of Ms Isaacson’s evidence, clearly an ESO of a much shorter duration was sought, if one was to be made at all.
[88]I have decided to impose an ESO of five years’ duration, for these reasons.
[89] First, Mr Broadbent must have the opportunity of targeted treatment. That this has not occurred to date is no fault of Mr Broadbent’s. Absent that treatment, any assessment of risk is devoid of what might be a very useful “input”. I note that the lack of treatment was a factor in the Court of Appeal’s decision, in Kiddell v Chief Executive of the Department of Corrections, to impose an ESO of five years.18
[90] Secondly, I accept Ms Isaacson’s evidence that it is possible Mr Broadbent’s risk will diminish more quickly than the standard risk assessment measures suggest, due to dynamic factors. Thus, I am not satisfied that an ESO for as long as 10 years is necessary.
[91] An ESO of five years’ duration will provide sufficient time for Mr Broadbent to have targeted treatment and for the effect of the various dynamic factors to become evident. And at the end of that period it will be open to the Chief Executive to seek an extension to the term of the order if he or she considers it necessary to do so.
Conditions
[92]I turn now to the conditions to be imposed.
[93]First, I impose the standard conditions set out in s 107JA(1) of the Act.
18 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171.
[94] Secondly, the Chief Executive seeks that I impose various special conditions, on an interim basis pending the Parole Board’s (“Board”) consideration of the issue.19
[95]Two of the special conditions sought were contentious.
[96] The first of these was the Chief Executive’s submission that I should impose a condition for intensive monitoring, and make an order requiring the Board to do likewise.20 An intensive monitoring condition would require Mr Broadbent to submit to being accompanied and monitored, for up to 24 hours a day, by an approved individual. Mr Broadbent has now been subject to intensive monitoring for a little more than a year, Moore J having imposed this as a special condition of the ISO. At the time of the hearing before me, Mr Broadbent had breached this condition once, by running away from the monitor to purchase some “ready to drink” alcohol mixes. Apart from this, Mr Broadbent has been compliant with the condition.
[97] Ms Smith submits that intensive monitoring is appropriate, based on Mr Bauer’s evidence as to the risk Mr Broadbent presents.
[98] Mr Edgar submits the condition is unnecessary. This submission is supported by Ms Isaacson’s evidence which was to the effect that such a condition is an excessive response to the risk that Mr Broadbent presents.
[99] I am not persuaded a condition of intensive monitoring is required, and I also decline to order the Board to impose the same. I prefer Ms Isaacson’s view that such a condition is excessive given the nature of the risk that Mr Broadbent presents, bearing in mind the environment in which he has offended, as referred to below.
[100] The other contentious special condition sought was one for electronic monitoring. Again, the Chief Executive submits this is required and Mr Edgar submits it is not.
19 Parole Act, ss 107IA and 107J.
20 Section 107IAC.
[101] I decline to impose a condition of electronic monitoring, although the Board may well take a different view, as it is entitled to do. Nothing I say is intended to affect the Board’s consideration of the issue.
[102]The reasons I do not propose to impose such a condition are these.
[103] As Mr Edgar submits, there must be a sufficient nexus between the risk an offender presents and the conditions imposed on the ESO.21 As Ms Isaacson said in evidence, Mr Broadbent’s sexual offending has occurred in domestic or confined environments and not in public places such as parks, schools, or public toilets.
[104] Given that, there is no apparent connection between the circumstances in which Mr Broadbent is most likely to offend and the proposed condition of electronic monitoring. Ms Isaacson’s evidence was that the critical matter is to ensure the conditions imposed require Mr Broadbent to provide information as to his whereabouts, that is matters such as where he is working and living, and with whom he is living.
[105] Subject to those points, counsel have helpfully supplied me with a list of the interim special conditions to be imposed. I agree those conditions are appropriate and impose them accordingly:
(a)To attend and complete an appropriate alcohol and drug counselling assessment to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
(b)To attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer.
21 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [49].
(c)To attend an assessment for a specialist child sex offender programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(d)Not to possess, use or consume alcohol, controlled drugs and/or psychoactive substances, except controlled drugs prescribed for you by a health professional.
(e)To comply with any tenancy agreement or rules issued by the provider of your approved accommodation.
(f)To obtain the written approval of a Probation Officer before starting or changing your position and/or place of employment (including voluntary and unpaid work). To notify a Probation Officer if you leave your position of employment.
(g)To disclose, at the earliest opportunity, the commencement, resumption or termination of any intimate relationship to your Probation Officer.
(h)Not to enter or loiter near any school, early childhood education centre, park, library, swimming pool, other recreational facility, church, or other area specified in writing by a Probation Officer, unless you have the prior written approval of a Probation Officer, or unless an adult approved by a Probation Officer in writing, is present.
(i)To be at your approved address between the hours of 10.00 pm and
6.00 am daily, unless you have the prior written approval of a Probation Officer.
Result
[106] Pursuant to s 107I(2) of the Parole Act 2002, I make an extended supervision order in respect of Mr Broadbent for five years. I impose the standard conditions in
s 107JA(1) of the Act and, pending the Parole Board’s consideration, the special conditions in [105] above.
Peters J
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