Chief Executive of the Department of Corrections v Broadbent
[2020] NZHC 2496
•23 September 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000352
[2020] NZHC 2496
UNDER Section 107FA of the Parole Act 2002 BETWEEN
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
AND
JAMES MANUEL BROADBENT
Respondent
Hearing: 22 September 2020 Appearances:
Brett Tantrum for the Applicant Mark Edgar for the Respondent
Judgment:
23 September 2020
JUDGMENT OF MOORE J
[Application for interim supervision order]
This judgment was delivered by me on 23 September 2020 at 4:30 pm.
Registrar/ Deputy Registrar Date:
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v BROADBENT [2020] NZHC 2496
[23 September 2020]
Introduction
[1] On 21 August 2020, the Chief Executive of the Department of Corrections (“Corrections”) applied in this Court for an extended supervision order (“ESO”) and, pending its determination, an interim supervision order (“ISO”) in relation to Mr Broadbent.1
[2] Mr Broadbent’s release conditions are due to expire on 19 September 2020. At present he is in custody on charges laid in the District Court which are understood to include driving charges and charges relating to breach of release conditions.2 He is scheduled to appear at a case review hearing in that Court on 24 September 2020 at which time it is expected he will seek a grant of bail.
[3] The ISO application is made pursuant to s 107FA of the Parole Act 2002 (“the Act”) on the grounds that:
(a)an application for an ESO has been made;
(b)that application has not been determined; and
(c)prior to the final determination of that application, Mr Broadbent’s release conditions will expire on 19 September 2020.
[4] Corrections also seek an intensive monitoring condition be imposed as a condition of the ISO.
[5]The application for an ISO is opposed by Mr Broadbent.
Is the offender required to be present at the hearing?
[6] Mr Broadbent was not present at the hearing. On his behalf, Mr Edgar advised that his instructions were that Mr Broadbent did not wish to be present. Despite
1 Normally such an application would be made in the sentencing Court which in this case is the District Court. However, because Corrections seek the imposition of an intensive monitoring condition s107IAB deems the sentencing Court to be the High Court, requiring the application to be made in this Court.
2 Minute of Fitzgerald J dated 15 September 2020.
Mr Broadbent’s instructions, Mr Tantrum, for Corrections, referred me to s 107G(4). This requires an offender to be present at the hearing of an ESO. The question raised was whether such a requirement applies to the hearing of an ISO. I asked counsel to file a joint post-hearing memorandum on this question and record my gratitude for the helpful submissions I later received on this issue.
[7] Section 107FA of the Act sets out the process and criteria under which an ISO may be made. It provides:
“(2) The sentencing court may, on application by the chief executive, order that, until the application for an extended supervision order is finally determined, the offender is subject to the supervision conditions specified in the order.”
[8] In contrast to s 107G, none of the Act’s provisions relating to an ISO provide guidance on how the Court is to conduct such proceedings and how that differs from an ESO. Section 107H governs hearings relating to ESOs. I agree with counsel that would necessarily include ISOs. That provision omits any reference to a requirement that the offender be in attendance. It recognises that it is the ESO which has the greatest impact on an offender’s rights and freedoms. In contrast, an ISO is granted as a temporary measure for a limited and necessarily abbreviated period. As such, an ISO necessarily has a lesser impact on an offender’s rights and freedoms. In the present case that period will be of the order of between two and three months. I agree with counsels’ submission that, in essence, an ISO is a “stopgap” to ensure that there is no period before the imposition of an ESO during which the offender may be free of oversight.
[9] There may also be some practical reasons why an offender’s presence is not mandatory at in ISO. In introducing the 2014 amendment, which included the ISO provisions, the then Minister of Corrections, the Hon Peseta Sam Lotu-Iiga noted that an ISO may be imposed where an overseas offender is subject to a similar ESO in a foreign jurisdiction and is released. Where that person is released and returns to New Zealand the availability of an ISO would ensure there was an effective public protection mechanism in place pending an ESO. In that situation an ISO could be made in the offender’s absence.
[10] I agree with counsel that ultimately, s 7 of the Act provides the paramount consideration; that is the safety of the community. This section, explicitly, takes precedence even over the right of offenders to be informed about decisions which affect them and advised how they may participate in the decision-making process.3
[11]Section 107I(1) imports the same consideration relevant to ESO applications.
Davison J held in Chief Executive of the Department of Corrections v Martin that:4
“The provisions of s 7 and the guiding principles set out therein are relevant and applicable to the Court’s consideration of whether to make an interim order pursuant to s 107FA.”
[12] In any event, it cannot be said that Mr Broadbent has been completely excluded from these proceedings. Both counsel have filed memoranda. The nature of an ISO hearing is necessarily limited. As in the present case, the evidence is often untested.5 It is at the ESO hearing that the substantive issues, including the opportunity to test evidence, occurs. Thus, for present purposes, the attendance of Mr Broadbent is more of a procedural rather than substantive concern.
[13] Furthermore, I agree with counsel that where there is an absence of clear legislative guidance it is within the inherent jurisdiction of this Court to conduct the proceeding as the Court thinks fit, consistent with the interests of justice, including both the offender’s rights and the necessity to preserve the safety of the community.
[14] For these reasons I am satisfied that it was not necessary for Mr Broadbent to attend the hearing. However, this decision is not to be taken as authority for the proposition that an ISO may be made in the offender’s absence in every case. Certainly, where an offender wishes to be present at the hearing of an ISO, special and compelling reasons would normally need to be found before the Court would proceed to hear the application in the offender’s absence.
3 Parole Act 2002, s 7(2)(b).
4 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [12] and [35].
5 Chisnall v Chief Executive of the Department of Corrections [2019] NZCA 510 at [21].
Background
[15] Mr Broadbent is 32 years old. He has an extensive criminal history and has been convicted of the following sexual offences:
(a)on three occasions between 2007 to 2009, against a 10-year-old male, forcing his penis into the victim’s mouth, putting the victim’s finger into his anus, masturbating in front of the victim and making him masturbate, showing the victim pornography;
(b)on one occasion in 2013, against an 11-year-old male, touching the victim’s penis and buttocks and kissing the victim’s mouth; and
(c)on one occasion in 2015, against an 11-year-old male, putting his hands inside the victim’s pants and holding his penis.
Health assessor report
[16] Corrections relies on a health assessment report from Mr Fred Bauer dated 20 July 2020. Following Mr Broadbent’s unreliable attendance at scheduled interviews with Mr Bauer, the report was written on the basis of a single 45-minute interview and collateral information obtained from his file.
[17] In addition to Mr Broadbent’s convictions for sexual offending, Mr Bauer also notes that he has 13 convictions for physically assaulting the third victim’s brothers. Mr Bauer notes the potentially sexual overtones to this offending. One charge involved forcing one brother to watch pornography with him and another related to Mr Broadbent hitting and punching the older brother in the testicles on numerous occasions. Further, in 2019, Mr Broadbent was charged with three counts of unlawful sexual connection and two of indecent assault against a 12-year-old boy alleged to have occurred in 2016. Mr Bauer notes that although these were ultimately withdrawn, this was cited as being due to concerns as to how the Court proceedings would affect the victim’s mental health.
[18] Mr Bauer considers that Mr Broadbent displays a pattern of sexually violating boys aged 10-12 years old when he has the opportunity, either through living with the victims or visiting their homes. His offending reveals a level of grooming and planning. Mr Bauer emphasises that Mr Broadbent appears to place himself in situations which afford him access to a specific age group range of male victims. This includes offending against his partner’s children. Mr Bauer concludes that Mr Broadbent has displayed an intense urge to commit relevant sexual offences which manifests itself when a potential victim is present in circumstances which Mr Broadbent either places himself in or finds himself in. Having regard to his numerous convictions, Mr Bauer considers that Mr Broadbent has a generally impulsive tendency, as observed in his transient lifestyle, behaviour in prison and drug abuse. Mr Bauer points to Mr Broadbent’s own childhood abuse as likely contributing to unhealthy sexual patterns in Mr Broadbent’s adulthood.
[19] In Mr Bauer’s opinion, Mr Broadbent’s displays of remorse are not credible and he has no insight into the impact of his offending.
[20] Based on clinical assessment tools, Mr Bauer concludes that there is a very high risk that Mr Broadbent will engage in relevant sexual offending within 10 years of release. On Mr Bauer’s assessment, Mr Broadbent sits at Level IV(b) on the Violence Risk Scale: Sexual Offender version, that is “well above average risk category”. That is the highest score available for sexual offenders.
Submissions
Applicant submissions
[21] The applicant asks that an ISO with special conditions be imposed on Mr Broadbent until the ESO application is finally determined.
[22] Mr Tantrum, for Corrections, submits that this report shows that Mr Broadbent has a pervasive pattern of serious sexual offending and that the Court can be satisfied there is a high risk that Mr Broadbent will commit a relevant sexual offence in the future at least on a provisional basis and that an ISO is appropriate.
[23] He submits that intensive monitoring conditions are necessary to ensure Mr Broadbent does not engineer or find himself in situations where he is likely to reoffend because he has displayed:
(a)an intense urge to commit relevant sexual offences which manifests itself in situations of victim availability;
(b)a proclivity for and some predilection towards serious sexual offending;
(c)a diminished self-regulatory capacity both generally and in relation to sexual urges;
(d)an extremely poor compliance history with conditions; and
(e)elements of opportunism and planning in his offending.
[24] In addition to the standard conditions, the following conditions special conditions are sought:6
(a)to be subject to intensive monitoring and 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, for the first 12 months of the ESO;
(b)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 to be determined by a Probation Officer;
(c)to attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or
6 As Mr Tantrum noted in his oral submissions, a number of the additional conditions sought duplicate the standard conditions in full or in part.
counselling as recommended by the assessment to the satisfaction of a Probation Officer;
(d)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;
(e)not to communicate in any way or associate with or directly or indirectly with the victims of his offending, without the prior written approval of a Probation Officer;
(f)not to possess, use or consume alcohol, controlled drugs and/or psychoactive substance, except controlled drugs prescribed for him by a health professional;
(g)to reside at an address approved by a Probation Officer and not move to any new residential address without the prior written approval of a Probation Officer;
(h)to comply with any tenancy agreement or rules issued by the provider of his approved accommodation;
(i)not to have contact or otherwise associate with a person under the age of 16 years, directly or indirectly, unless he has the prior written approval of a Probation Officer, or unless he is under the supervision and in the presence of an adult approved in writing by a Probation Officer;
(j)to obtain the written approval of a Probation Officer before starting or changing his position and/or place of employment (including voluntary and unpaid work). To notify a Probation Officer if he leaves his position of employment;
(k)to disclose, at the earliest opportunity, the commencement, resumption or termination of nay intimate relationship to his probation officer;
(l)to submit to electronic monitoring as directed by a Probation Officer in order to monitor your compliance with any conditions relating to his whereabouts;
(m)to comply with the requirements of electronic monitoring and provide unimpeded access to his approved residence by a Probation Officer and/or representatives of his approved residence by a Probation Officer and/or representatives of the monitoring company from the purpose of maintaining electronic monitoring equipment as directed by a Probation Officer;
(n)not to enter or loiter near any school, early childhood education centre, park, library, swimming pool, other recreation facility, church, or other area as specified in writing by a Probation Officer, unless he has the prior written approval of a Probation Officer, or unless an adult approved by a Probation Officer in writing, is present; and
(o)to be at his approved address between the hours of 9:00 pm and 6:00 am daily unless he has the prior written approval of a Probation Officer.
Respondent submissions
[25] First, I record the Court’s gratitude to Mr Edgar, for Mr Broadbent, for filing his helpful written submissions under such urgency, given the circumstances. Mr Edgar submits that Correction’s claim of a “pervasive pattern of serious sexual offending” does not bear up when the full context of Mr Broadbent’s offending history is considered. The admitted offending covers a period of three years.
[26] Mr Edgar also submits that Mr Bauer’s report needs to be peer reviewed, or an independent health assessors report convened. Mr Edgar notes that Mr Broadbent tends to be suspicious of authority figures and thus Mr Bauer’s engagement with Mr Bauer was consequentially limited. It thus follows that Corrections’ suggestion
that Mr Broadbent lacks contrition or insight into the impact of his offending is not accurate. Mr Broadbent admitted his most recent set of offending without the need for a trial. Further, some of his confusion and denial of the facts of the offending may be explicable by his drug use at the time.
[27] On sentencing, release conditions were set which provided for a rehabilitative programme directed at sexual offending. However, Mr Broadbent’s Probation Officer has not put him in touch with such a programme. Only in the last two weeks has an ISO been sought.
[28] In the event an ISO is made, Mr Broadbent strongly opposes the imposition of any prohibition orders/conditions which prevent access to the mobile phone network or the internet. However, I note that none of the conditions sought include prohibitions of that sort. Mr Broadbent also strongly opposes Correction’s request for the imposition of intensive monitoring conditions including a GPS tracking device.
[29] Finally, Mr Edgar advised that he anticipates being instructed by Mr Broadbent to apply for bail on 24 September 2020. Having spoken to officers at the remand prison it would appear a suitable residence will be available “just outside the wire” at Springhill Prison. Mr Edgar submits that in the absence of pro-social support and with no access to transport, this address will provide the Court with the necessary reassurance that any public risk Mr Broadbent might present would be sufficiently mitigated.
Law
[30] An ISO is a temporary measure intended to cover the situation where, pending the determination of an ESO, there would otherwise be a period of no supervision. Before making an ISO the Court must be satisfied (in a provisional way, subject to later reconsideration on receipt of all evidence), that the statutory criteria for making an ESO are made out.7 The paramount consideration is the safety of the community, but it must also be recognised that offenders should not be subject to conditions that
7 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [16].
are more onerous, or endure longer, than is consistent with the safety of the community.8
[31]The criteria for making an ESO are set out in s 107I of the Act.
“(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.”
[32] In examining how much serious sexual offending reflects a pervasive pattern, the Court of Appeal recently pointed to the definition of pervade; that is to spread through or permeate. The Court found that a pattern could fairly be described as pervasive where there have been continued occurrences throughout the offender’s adult life.9 “Serious” here is given its ordinary meaning.10 Seriousness may be identified with the benefit of hindsight, and in particular with an awareness of an offender's subsequent conduct.11
[33] Section 107IAA(1) sets out the matters of which the Court must be satisfied in assessing whether there is a high risk that the offender will in future commit a relevant sexual offence.
“(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
8 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275.
9 W v Chief Executive of the Department of Corrections [2019] NZCA 460.
10 At [4].
11 At [20].
(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.”
Intensive monitoring condition
[34] When the Court makes an interim supervision order, it may impose any special condition that may be imposed under an ESO including an intensive monitoring condition.12 The Court must specify the maximum term of the intensive monitoring condition, being no longer than 12 months. Such an order may not be made more than once in respect of the same offender.13 When an intensive monitoring condition is imposed under an ISO, this will not count towards the maximum term.14 In determining whether a restriction is justified or not, the inquiry should be fact-specific. There must be a nexus between the perceived risk and the effectiveness of the proposed condition.15
Discussion
[35] I may only base my decision on the limited material before me. That all but entirely consists of Mr Bauer’s report. I am conscious this is untested, and I note with a concern shared by Fitzgerald J, the Criminal List Judge, that Corrections gave Mr Broadbent limited notice before seeking an ESO, despite Mr Bauer’s report apparently being available in July.16
12 Parole Act 2002, ss 107FA(3) and 107IAB.
13 Section 1071AC.
14 Section 107FA(4).
15 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275.
16 See [8] and [9] of Minute of 15 September 2020. This conduct by Corrections is not isolated. This Court has observed on previous occasions that the late filing of ESOs required the Court to hear applications on an urgent basis when the need to that urgency was entirely avoidable. This has caused considerable inconvenience to the Court and the parties. Corrections know when a prisoner is scheduled to be released. They know the release conditions. There is no excuse for not putting in place the steps necessary well before release.
[36] However, having regard to the contents of the report, I consider that there are strong and compelling grounds which support the making of an ESO. In light of the principle that the safety of the community is the paramount consideration, I am satisfied that an ISO should be made. Mr Broadbent is assessed at the highest available level of risk of reoffending without close supervision. For that reason I am satisfied that the intensive monitoring condition is necessary.
[37] I also note that the ISO is only likely to be in place for a relatively short period before the ESO is determined. As to the list of specific proposed conditions, I am satisfied they are necessary for the following reasons:
(a)Condition (a) is necessary because Mr Broadbent poses a high risk of reoffending and it is likely that this risk cannot be managed safely with constant supervision.
(b)Conditions (b) and (f) are necessary because Mr Broadbent has issues with substance abuse and has used alcohol and drugs as part of his offending.
(c)Conditions (c) and (d) are necessary to ensure Mr Broadbent receives targeted and structured treatment.
(d)Condition (e) is necessary to protect any of the victims of his offending.
(e)Conditions (g) and (h) are necessary to provide oversight of his living situation, (j) of his employment and (k) of his relationships. Given the factual context of his past offending, these conditions have a clear nexus to his risk of reoffending.
(f)Conditions (i) (l), (m), (n) and (o) are necessary to provide effective oversight of his movements, and to prevent Mr Broadbent coming into contact with any young males, to reduce his risk of reoffending.
Result
[38] I order that an ISO is to issue in respect of Mr Broadbent, with standard conditions and the special conditions set out at [24].
[39] That being the case, it is necessary to allocate a fixture at the earliest possible date to hear the substantive ESO. I note that Mr Edgar has indicated he will likely engage a health assessor for the purposes of the substantive application. He has been granted legal aid for that purpose. He has approached a potential assessor but has not been able to confirm availability. Experience suggests that in these circumstances it is unlikely a fixture within three months will be possible. That is because Mr Edgar will need to confirm and instruct the assessor. Time will be needed for the assessor to meet with Mr Broadbent, probably on more than one occasion. Others may also need to be interviewed. The report will then be prepared and disclosed to Corrections for the purpose of further briefing Mr Bauer. I direct the ESO is to be heard on Thursday, 10 December 2020. A full day is allocated. In the event that date may later prove unworkable, counsel are directed to bring that matter to the attention of the Criminal List Judge forthwith.
Moore J
Solicitors:
Crown Solicitor, Auckland Mr Edgar, Auckland
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