Chief Executive of the Department of Corrections v Brown
[2015] NZHC 3296
•18 December 2015
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2015-441-000034 [2015] NZHC 3296
BETWEEN THE CHIEF EXECUTIVE OF THE
DEPARTMENT OF CORRECTIONS Applicant
AND
ROBERT JOHN BROWN Respondent
Hearing: 18 December 2015 Counsel:
F E Cleary for Applicant
E J Forster for RespondentJudgment:
18 December 2015
JUDGMENT OF COLLINS J
Introduction
[1] This judgment explains why I am granting the application brought by the Chief Executive of the Department of Corrections (the applicant) for an extended supervision order (ESO) in relation to Mr Brown. The ESO shall be for 10 years.
[2] Mr Brown was convicted in 2006 in relation to the following charges:
(1) Four charges of sexual violation by unlawful sexual connection;1
(2) Four charges of indecency with a boy aged between 12 and 16 years;2
(3) One charge of inducing an indecency with a boy aged between 12 and
16 years.3
1 Crimes Act 1961, s 128(1)(b). Maximum penalty 20 years’ imprisonment.
2 Section 140A. Maximum penalty seven years’ imprisonment. This section was repealed on20
May 2005 via s 7 of the Crimes Amendment Act 2005 (2005 No 41).
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v BROWN [2015] NZHC 3296 [18
December 2015]
[3] On 26 June 2006 Allan J sentenced Mr Brown to nine years’ imprisonment
with a minimum non-parole of six years’ imprisonment in relation to those charges.
[4] In 2008 Mr Brown faced a further trial on two charges of indecent assault on a male over the age of 16, and one of indecent assault on a boy aged between 12 and
16 years of age.4 On 30 July 2008 he was sentenced by Andrews J to six months’
imprisonment, cumulative on the extant sentence.
[5] The expiry date of Mr Brown’s sentence was 16 June 2015. His release conditions expired on 15 December 2015, but were extended by me until the hearing on 18 December 2015.
[6] The applicant seeks the imposition of a 10 year ESO upon the expiration of Mr Brown’s release conditions. That application is opposed by Mr Brown. However, notwithstanding earlier indications, Mr Brown has not challenged the evidence relied upon by the applicant. Nor has Mr Brown adduced any evidence in support of his opposition.
[7] Mr Brown’s case is that the psychologist’s report relied upon by the applicant pre-dated Mr Brown’s latest trial. Mr Brown was found not guilty at his latest trial. It is submitted on behalf of Mr Brown the psychologist’s report was influenced by the charges that were pending and Mr Brown should now be reassessed because the psychologist’s report does not truly reflect Mr Brown’s remorse.
[8] I accept aspects of the psychologist’s report were based on the fact Mr Brown was facing further charges when the report was written. However, as I will demonstrate in this judgment, the fact Mr Brown was acquitted of the latest charges is not relevant to the psychologist’s assessment. It is also not a factor that affects my
judgment.
3 Crimes Act 1961, s 140A.
4 Each charge brought under s 140A.
Facts of the offending
First trial
[9] The offending involved three boys, with one of the boys being the victim in seven of the nine charges. That boy and his family lived close to Mr Brown. He had two younger brothers. The brothers would do odd jobs at Mr Brown’s house while their parents were working. Mr Brown on those occasions would encourage the eldest boy to massage his legs. The time the eldest boy spent at Mr Brown’s house increased, including sleeping overnight and driving the boy to school.
[10] At one point in 2004, when the boy was aged 13, Mr Brown got the boy to lie on top of him. Mr Brown started to rub the boy’s genitals, and held him down when he tried to escape. Mr Brown then took the boy to a bedroom, masturbated him and performed oral sex on him. He gave the boy $50 cash and told him not to tell anyone what had happened.
[11] During the school holidays later that year, the boy was helping Mr Brown with his contracting business. Mr Brown got the boy to go to a toilet with him, where Mr Brown induced the boy into masturbating him and performing oral sex on him.
[12] A similar instance happened around Christmas that year. Mr Brown performed oral sex on the boy in the outside toilet. Mr Brown then masturbated himself and the boy. A couple of weeks later when the boy was at Mr Brown’s address, Mr Brown approached him from behind and rubbed the boy’s genitals through his pants.
[13] The second victim was 15 years old. Mr Brown met him in 2005. Mr Brown offered him a job at his business, and commenced sending that boy text messages containing sexual material. Later when that boy was at Mr Brown’s house (Mr Brown was paying him to do odd jobs), Mr Brown suggested the boy should experiment sexually with men and offered him money to engage in oral sex with Mr Brown. The boy refused. Mr Brown dropped him home later that day, and
rubbed his thigh during the drive. He kissed him on the forehead and told him he loved him. He continued to send the boy text messages of a sexual nature.
[14] The third victim was also 15 years old, whom he met several weeks after meeting the second victim. This boy was driving home, accompanied by Mr Brown, who began a conversation about sex. He rubbed the boy’s genitals through his trousers. Mr Brown told the boy to pull off the road under a bridge, and to turn the car lights off. Mr Brown pulled down his trousers and told the boy to do the same. He placed the boy’s hand on his penis. He also placed his own hand and mouth on the boy’s penis, and made him ejaculate. He then forced the boy to kiss him. He said he would give him $100 if he did not tell anyone what had happened.
Second trial
[15] The first victim of the offending which was the subject of the second trial was working for Mr Brown in 2005. He was 15. Mr Brown would ask him personal questions about sex, which the boy endeavoured to avoid. On one occasion the two were working on a farm. The boy was driving a tractor and Mr Brown was sitting behind him. Mr Brown would rest his arm on the boy’s leg, and the boy attempted to dodge these advances. Mr Brown persisted, and began rubbing the boy’s penis through his pants. He asked the boy if it felt good. The boy then reported he felt sick, and left work for the rest of the day.
[16] The second victim in this trial was 22 years old. Mr Brown met this man when he was on remand. Mr Brown rubbed his thigh and buttocks, and on another occasion he gave the victim a “bear hug” and rubbed his penis against the victim.
Previous relevant convictions
[17] Mr Brown’s criminal history records that he has one conviction for indecent assault on a boy between 12 and 16, dated December 1995. He was sentenced to nine months’ supervision (suspended sentence) on 31 January 1996. The facts of this offence are set out in the psychological report, and follow a similar pattern to the offending which occurred in the 2000s. Mr Brown hired the 14 year old victim to
work for him, removed his shorts and underwear, grabbed his penis and asked if he could perform oral sex on him.
Relevant statutory provisions
[18] The Parole Act 2002 (the Act) contains the statutory provisions governing the imposition of an ESO.
[19] An ESO may be imposed against “eligible offenders” – specifically, individuals who have been sentenced to a finite prison term for a relevant offence, and are still serving that sentence.5
[20] An ESO application must meet the prescribed form and be accompanied by a report by a suitable health assessor.6 This report must detail the following:
(1)the nature of any likely future sexual offending by the offender, including the age and sex of likely victims;
(2) the offender’s ability to control his or her sexual impulses;
(3) the offender’s predilection and proclivity for sexual offending;
(4)the offender’s acceptance of responsibility and remorse for past offending;
(5) any other relevant factors.
[21] The health assessor may also take into account any statement of the offender or any other person concerning any conduct of the offender, whether or not that conduct constitutes an offence, and whether or not the offender has been charged
with, or convicted of, an offence in respect of that conduct.7
5 Parole Act 2002, s 107C.
6 Section 107F(2).
7 Section 107F(3).
[22] The purpose of an ESO is outlined in the Act in the following way:8
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.
[23] The court may make an extended supervision order if it is satisfied, having considered the matters in the health assessor’s report, that the offender is likely to commit any of the relevant offences referred to under section 107B(2) of the Act upon ceasing to be an eligible offender.9
[24] The term of the order must reflect the minimum period required for the purposes of the safety of the community in light of the risk posed by the offender, the seriousness of potential harm caused to victims, and the likely duration of the risk.10
An ESO must not exceed 10 years.11 The provisions of an ESO include standard
conditions set out in s107JA of the Act, as well as any further special conditions later imposed by the New Zealand Parole Board.12
[25] The Court of Appeal has discussed the weight a Judge must give to the various competing factors in any decision to impose an ESO. Importantly, it held that a Court must be wary of merely rubber-stamping the health-assessor’s report, and the decision must be approached broadly. In Barr v Chief Executive of Department of Corrections, the Court of Appeal stated:13
[I]t is for the judge to make up his or her own mind after hearing all the evidence and considering all the statistical, historical and current circumstances to decide whether the pre-condition for making the order exists.
Summary of the psychological report
[26] Mr Brown is a 54 year old, New Zealand Pakeha male. His occupation is a contractor. The report records that at the time the report was prepared, Mr Brown
8 Parole Act 2002, s 107I(1).
9 Section 107I(2)
10 Section 107I(5).
11 Section 107I(4).
12 Sections 107JA and 107K.
13 Barr v Chief Executive of Department of Corrections CA60/06, 20 November 2006 at [24].
was facing several historic charges of sexual offending against boys aged between 12 and 16 years of age. Those charges have now been heard and resulted in not guilty verdicts.
[27] Ms Berry, the clinical psychologist, detailed Mr Brown’s offending and noted, “of concern” the offending which was the subject of the second trial occurred despite the presence of formal oversight while Mr Brown was on remand. Ms Berry referred to previous psychological reports completed during Mr Brown’s time in prison, which noted he had been the subject of a complaint by another prisoner for making sexual advances. He had also claimed to be in love with a 20 year old prisoner, and was upset at being moved to another unit further away from him.
[28] Mr Brown sought to minimise, justify and deny aspects of his behaviour. An example is Mr Brown said he touched one of the victim’s legs to wake him up, as opposed to touching his penis (for which he was convicted). Mr Brown explained that he could not be open about his sexuality, and this is why he would ask his victims questions about their sexual orientation. That, he said, would help him to assess their willingness to engage in sexual conduct with him.
Treatment history
[29] Following his 1995 conviction, Mr Brown had eight sessions with a psychologist and made some progress towards developing skills to assist him in avoiding situations in which he was likely to offend. Ms Berry then, of course, notes that Mr Brown went on to reoffend and that any progress made was ineffective.
[30] Mr Brown has also attended the Te Piriti Special Treatment Unit in 2011 for six to seven months. There he was assessed as viewing himself as the victim and displayed minimising behaviour. He did, however, come to identify his grooming behaviours and the fact that he chose younger males because they were “less likely to reject him”. He could identify risks of future offending, and learned to manage any inappropriate sexual arousal and pre-occupation. There was one incident in which, it is reported, Mr Brown “appeared to assist [another] prisoner in not taking responsibility for his actions”. Overall he was assessed as having made “useful gains” in the Special Treatment Unit.
[31] Ms Berry appears to assess Mr Brown as having moved backwards since his time in the Special Treatment Unit:
In the current assessment, Mr Brown reverted to his earlier stance of minimising, justifying and denying his offending; refusing to comment about the victim against whom he has multiple convictions. He elected not to comment about his sexual behaviour in the prison setting because of a concern that may incriminate him. He was able to identify areas that he needed to be mindful of upon release, but did not provide any substantive evidence as to how he would manage each of these areas. He adopted a somewhat defeatist attitude when discussing his inability to cope if an ESO was imposed and he perceived such an order as too restrictive. He expressed a desire to be a loner upon release, which is concerning given that social isolation and feelings of loneliness have previously contributed to his offending behaviour.
Potential to offend
[32] Ms Berry assessed Mr Brown’s risk of committing further sexual offences upon his release into the community as high. This conclusion represents the result of a multi-method assessment based upon actuarial instruments and clinical factors.
Section 107IAA
[33] Ms Berry addresses the factors the Court must be satisfied of when makings its own risk assessment:
(1) Demonstration of an intense drive, desire or urge to offend again:
Ms Berry noted Mr Brown’s repeated arousal by males aged between
12-16 suggests a willingness to have sexual needs met without regard for consequences, and that he is driven by desire for contact with young males.
(2)Predilection or proclivity for serious sexual offending: Ms Berry reports that Mr Brown prefers younger males because they make him feel young. She also notes Mr Brown’s offending against younger males in prison “suggests some level of both predilection and proclivity for sexual offending towards adult males as well as adolescent males”.
(3) Self-regulatory capacity: Ms Berry reports Mr Brown’s
imprisonment has not deterred him.
(4)Lack of acceptance of responsibility or remorse for past offending: Ms Berry notes Mr Brown’s minimisation and/or justification of his offending.
(5)Absence of understanding for or concern about the impact of offending on actual or potential victims: Ms Berry noted Mr Brown’s previous expressions of remorse are militated by his current minimisation and his justification of his offending.
Risk parameter statement
[34] Ms Berry concluded:
It is considered that there is a high risk that Mr Brown will engage in relevant offending within ten years of release. Victims are likely to be pubescent males aged between 12 and 16 to whom Mr Brown is attracted and has sought access through offers of employment. It would appear that sexual offending could also extend to young males, if access to pubescent males is not possible. Such behaviour is likely to be prompted by feelings of loneliness and the absence of an appropriate sexual outlet. He is unlikely to consider the impact of his behaviour on the victim (or himself), rather referencing his actions as caring and loving, and justifying them has (sic) having been misinterpreted.
Is an ESO appropriate in this case?
[35] Having taken the psychologists’ recommendations into account, it remains for me to determine whether Mr Brown is likely to commit a relevant sexual offence under the Act upon his release. In R v Peta, the Court of Appeal noted that the risk of offending must be real, ongoing, and one that cannot be ignored having regard to the statutory nature and gravity of the likely reoffending.14
[36] I am satisfied the following factors support the imposition of an ESO in this case:
14 R v Peta [2007] NZCA 28 at [8].
(1)The psychological assessment that Mr Brown poses a high risk of engaging in relevant sexual offending within five and ten years of his release. In particular, the assessment notes that Mr Brown displays poor self-regulating skills, such as his strategy to avoid young boys, which are likely to perpetuate his feelings of isolation and loneliness which has been identified as relevant to his offending behaviour.
(2)Despite his treatment gains in the Special Treatment Unit, Mr Brown unacceptably minimises and justifies his behaviour, and is prone to treating himself as a victim.
(3)Should Mr Brown reoffend, his actions have been deemed likely to place pubescent males between 12 and 16 who are known to him, at risk. That said, Mr Brown’s modus operandi has been to employ young boys, and offend against them while they work for him. This behaviour could be sufficiently managed, although it is noted Mr Brown’s offending is liable to be opportunistic when he does not have access to his preferred class of victims.
[37] I conclude that an ESO is appropriate. The remaining question is the length of the order.
Appropriate length
[38] In a significant number of cases where an extended supervision order has been imposed, the Court has opted for a maximum length of ten years. In Chief Executive of the Department of Corrections v Steven, the senior psychologist with the Psychological Service of the Department of Corrections at Rotorua noted that it was departmental policy to seek extended supervision orders for the maximum
term.15 Allan J noted the senior psychologist “would be reluctant to recommend
anything less than 10 years, except in a case where a number of factors taking
15 Chief Executive of the Department of Corrections v Steven HC Rotorua CRI 2004-463-130,
18 April 2005.
together clearly suggested that the risk of further offending was greatly
diminished.”16
[39] I am very mindful of the need to exercise caution about the length of an ESO and not simply give effect to the applicant’s wishes without careful evaluation, particularly as the applicant appears to routinely seek ESOs for 10 year periods.
[40] In my assessment, the factors which I have accepted when determining an ESO must be imposed, and which I have set out in paragraph [38] of this judgment, also weigh heavily in support of the applicant’s request that the ESO be for 10 years.
[41] I am very concerned about the risks Mr Brown poses for vulnerable victims and his lack of genuine insight and appreciation of the harm he causes. For this reason, I am granting the applicant’s request that the ESO be for 10 years.
Conclusion
[42] The application for an ESO is granted.
[43] The ESO will be for 10 years.
D B Collins J
Solicitors:
Crown Solicitor, Napier for Applicant
16 Chief Executive of the Department of Corrections v Steven, above n 15, at [55].
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