Chief Executive of the Department of Corrections v Campbell

[2014] NZHC 1388

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000029 [2014] NZHC 1388

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

v

IVAN ANDREW CAMPBELL

Hearing:	19 June 2014
Appearances:	K South for the Applicant Respondent appears in Person
Judgment:	19 June 2014

JUDGMENT OF PANCKHURST J

Introduction

[1]      Mr Ivan Andrew Campbell is a serving prisoner.  The Chief Executive of the Department of Corrections has applied for an extended supervision order.  It is not opposed.  Nonetheless, I must be satisfied that there are proper grounds to make such an order and explain the reasons which prompt me to do so.  Given the absence of opposition, I can set out those reasons succinctly.

The statutory provisions

[2]      Section 107I of the Parole Act 2002 explains that 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.

Subsection (2) provides the jurisdictional basis for the making of such an order:

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CAMPBELL [2014] NZHC 1388 [19 June 2014]

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.

A “relevant offence” is defined in s 107B(2) of the Act and includes sexual violation and associated sexual offending, as defined in the Crimes Act 1961.

[3]      The term of an extended supervision order must be defined and it may not exceed 10 years.  That term must reflect the level of risk posed by the offender, the seriousness of the harm that may be caused and the duration, or likely duration, of that risk.

[4]      You, Mr Campbell, are eligible for this form of order.  You were sentenced in relation to sexual offences in August 2001 at Auckland, being sexual violation by unlawful sexual connection on a boy who was under 16 years of age.   You were sentenced to 14 years’ imprisonment.  That sentence has not been quashed, and you are not subject to a sentence of preventive detention or a life sentence.   You also remain subject to the sentence of imprisonment and for that reason you are eligible to be made subject to an extended supervision order.

[5]      The major issue to be determined in relation to such an application is whether the offender poses a real and ongoing risk, in this instance, to young, adolescent boys, and in relation to sexual offending upon them.   To my mind, there are two aspects which are most relevant to that test.  The first is your past history, the second is a health assessor’s report prepared by a psychologist, who has obviously had a good deal of contact with you and remains in contact with you at the present time.

Offending history

[6]      I turn then to your personal history.  I note that you are 48 years of age.  You only have three convictions for sexual offences, all of which were dealt with at the sentencing in the Auckland High Court in 2001.   However, some of the offending dated back to August 1991.   At that time you were staying at the home of the complainant.  He was a boy aged 13 years.  You enjoyed the trust of his mother and

indeed were permitted to take the complainant and his younger brother away for a weekend.   During that weekend, however, the older boy was inveigled into involvement in various sexual acts, including initially masturbation, but this progressed to oral sex and then a serious attempt to have anal intercourse with him. In fact, according to the summary of facts, anal intercourse actually occurred.

[7]      This, I should say, was a course of conduct, not just one isolated incident.  In order to secure the complainant’s compliance he was told that you were involved in a bondage circle, and he became intimidated and fearful as a result.   Hence, he was compliant throughout the relevant weekend, although he must have complained soon after the event.

[8]      You were not charged with the offences for some time, because you moved to Australia.   While there,  you were imprisoned in 1996  in relation to charges of burglary, arson and wilful damage.   The sentence was one of nine years’ imprisonment.  You served a substantial part of the term before you were deported back to New Zealand in, I think, 2000.

[9]      In August of that year the further sexual offences were committed.  At this time you were living in Auckland and in receipt of a sickness benefit.   The complainant was a boy aged 14 years.  He was persuaded to come to your residence on the pretext that you wished to discuss matters with him concerning your “son”. In fact, you did not have a son.  He was held captive for a period of seven nights. Initially, he was told that he had been nominated to join a criminal gang and that this was an honour.  You said you had been paid the sum of $30,000 for his recruitment, and that it would take a period of months for him to earn full membership of the gang.  In any event, he was plied with alcohol and threatened as well.

[10]     The sexual conduct included oral acts and anal acts as well.  But he was also subjected to significant violence.  There were beatings, hot wax was poured on his body, he was tattooed and subjected to body piercing as well.  Bondage equipment was used, together with chains and at one point at least he was restrained by being locked in a cupboard.   Perhaps worst of all, he was also branded using a hot instrument and this caused burns to his lower back.

[11]     Again, this was a course of conduct where acts of the kind that I have just mentioned occurred more than once.   On the seventh day you left the house, but remained on the section while attending to a maintenance issue.  The complainant seized the opportunity to phone his home and speak to a sibling.  He requested that his mother secure the involvement of the police and come to your address.   That occurred, and the complainant was released.

[12]     The health assessor’s report which is before me describes these crimes as involving   “a   high   level   of   physical   and   sexual   violence,   degradation   and humiliation” of the complainant.  That, if anything, is perhaps a mild description of the sexual acts and the violence.

[13]     You were sentenced in the High Court upon two charges of sexual violation by unlawful sexual connection, assault with a weapon, kidnapping and common assault.  Some of these charges were representative in nature, given that certain of the acts had occurred repeatedly.  A total sentence of 14 years’ imprisonment was imposed in August 2001.  Essentially, Mr Campbell, you have been in prison since then.

The health assessor’s report

[14]   The psychologist’s report dated 5 February 2014 contains a wealth of information concerning your background, your family history and your treatment during the time you have been under the control of the Department of Corrections. You co-operated fully in relation to the preparation of that report and you have actually confirmed to me this morning that you remain in contact with the report writer, Ms Brown. That is positive and to your credit, Mr Campbell.

[15]     I note that you were paroled in 2012.   Initially, you went to the Salisbury Street Foundation under a temporary release programme and made what seemed to be good progress.  This then became a parole situation, but only three weeks into the parole period you absconded from the home, together with an 18 year old fellow resident. You were located about a week later living rough.  The investigation which followed  showed  that  there  had  been  sexual  acts  committed,  but  you  were  not charged with any offences since the acts were consensual.  Nonetheless, the escape

and these surrounding circumstances inevitably resulted in your recall to prison and you remain there at the present time. Your release date, I note, is next month.

[16]     You have received treatment, or at least treatment has been attempted, during your years in prison.  In 2008 you were a participant in the Kia Marama Programme. However, your conduct towards young prisoners also involved in the programme was such that you were excluded.  The Kia Marama Programme was tried again in

2010 and initially there were thought to be positive signs. Again, however, you were expelled for similar behaviour towards younger inmates.

[17]     Then in 2011 individual psychological counselling was initiated.  This, too, seemed to be positive in that gains were being made, but the evaluation today is that you  were  being  deceitful  and  manipulative  concerning  the  progress  you  were making, something I think confirmed by what occurred the following year when you escaped from the Salisbury Street Foundation.

[18]     Ms Brown, the report writer, has conducted a range of psychological tests, both static and dynamic in nature.  The combination of these tests has produced a rating, namely that you are at high risk of further offending once back in the community.   Her report, as required, reviews each of the factors identified in s

107F(2) of the Act.  The first relevant aspect is who the likely victims would be in the event of your re-offending.   The answer is obvious enough: young adolescent males who are likely to be known to you and to have been groomed, or forced, to co-operate.

[19]     The second matter is your ability to control sexual impulses.   The report writer considers that your level of control is poor, something which I think is supported by the history to which I have just referred.  It rather speaks for itself.

[20]     The third matter is whether you have a predilection, or proclivity, for sexual offending and the conclusion contained in the report is that this is established.  The predilection is to offend against adolescent boys aged typically 13 to 14 years of age. Indeed, I note that you have described a persona which you adopt when involved in such conduct, including a name that you then use, being “Johnny”.

[21]     The final aspect is whether there is evidence to show that you have accepted responsibility for your past actions and demonstrated remorse.  As to that, it is best that I quote a portion from the report at para 33(d). The writer said this:

During the current assessment Mr Campbell accepted responsibility for his offending and expressed regret and remorse regarding past behaviours.  He was also able to articulate the likely effects of his behaviour of his victims. His affect during these discussions was unchanged however, and given his tendency for deceit and manipulation, and his ability to intellectualise his risk processes, the extent of his remorse is unclear.

I doubt that this aspect is one which provides any comfort in relation to the assessment of the risk that you are likely to pose.

[22]     The overall conclusion reached by Ms Brown is as follows:

Mr Campbell is assessed as likely to commit further sexual offences against male adolescents under the age of 16, with his victims likely to be male and known to him.  He has acknowledged a sexual preference for 13 or 14 year old males, and has articulated his concern about his ability to manage his risk.  A number of dynamic risk factors remain present for Mr Campbell and he has demonstrated an ability to continue to engage in high risk and antisocial behaviour, all the while displaying apparent compliance with treatment skills and release conditions.   He has been assessed as being at high  risk  of  further  sexual  offending  based  on  the  static  risk  factors contained  in his ASRS  score, the  dynamic  risk  factors contained in the STABLE-2007 score, and other clinically relevant factors.

[23]   In light of that assessment Ms Brown recommended that an extended supervision order be made for a duration of 10 years.

[24]     One  of  the  most  striking  and  perhaps  positive  features  of  her  report, Mr Campbell, is something that you said which is recorded at para 3 of the report. You told Ms Brown this:

I am desperate to have an extended supervision order granted, as at the time of this assessment I do not trust myself outside prison.

[25]     I am in no doubt that you do pose a real and ongoing risk to adolescent boys. I  am  also  satisfied  you  are  likely  to  commit  relevant  offences  on  release. Accordingly, the statutory test for making an order is established.

[26]     What duration should the order be?  Given your age, aspects of your history to which I have referred, I am satisfied that a 10 year term is the minimum term appropriate in your case.  This term reflects the high level of risk that you pose, the seriousness of the harm that you may cause, including from the use of violence, and the likely duration of the risk, given your comparatively young age.

Conclusion

[27]     I accordingly make an extended supervision order, Mr Campbell, and fix 10 years as the duration of the order.  That order will come into force on your statutory release date, 9 July 2014.  You will be served with a copy of the order, including the conditions which are fashioned by the Parole Board.

[28]     Mr Campbell, for your sake I hope that your indication that you welcome the making of this order are indeed genuine.  Compliance with the terms of the order must represent the best chance you have got of preventing a reoccurrence of the past.

[29]     Finally, I note that when you were sentenced in 2001 you were not warned in relation to preventive detention.  It is not necessary for prisoners being sentenced to be warned that preventive detention is a likely sentencing option if they appear again, but I think it is appropriate to mention that to you today.

[30]     Given  the  background  to  which  I  have  referred,  it  seems  to  me  almost inevitable that you will receive a sentence of preventive detention, if you lapse again in the future and commit sexual offences against adolescents.  You will know that this is a very bleak prospect.  Your destiny is really in your hands and, as I have already said, compliance with the terms of the order provides you with the best hope.

Solicitors:

Raymond Donnelly & Co, Christchurch