Chief Executive of the Department of Corrections v CJW
[2016] NZHC 1082
•18 May 2016
INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF APPLICANT PENDING ANY APPEAL IN TERMS OF PARAS [89]–[90]
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000146 [2016] NZHC 1082
BETWEEN CHIEF EXECUTIVE OF THE
DEPARTMENT OF CORRECTIONS Applicant
AND
MR W Respondent
Hearing: 16, 17 and 18 May 2016 Appearances:
D J Dufty and S Wilson for Applicant
J W Clearwater and J Nouri for RespondentJudgment:
18 May 2016
Reasons:
23 May 2016
REASONS FOR JUDGMENT OF VENNING J
This judgment was delivered by me on 23 May 2016 at 5.00 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
Clearwater & Associates, Auckland
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MR W [2016] NZHC 1082 [18 May
2016]
Application for ESO
[1] The Chief Executive of the Department of Corrections applies for an Extended Supervision Order (ESO) under the Parole Act 2002 (the Act) against Mr W. The application was made in the alternative to a Public Protection Order (PPO) application. After hearing the application for the PPO I dismissed it and then heard this application for the ESO immediately afterwards. At the conclusion of the hearing for the ESO, I granted an ESO with reasons to follow. These are the reasons.
Background to Mr W’s offending
[2] Mr W is 40 years old. His offending began when he was 15 years of age. His first appearance in the District Court was on 24 September 1992 when he was sentenced for a number of offences committed on 8 December 1991, namely unlawfully takes a motor vehicle, unlawfully interfering with a motor vehicle, theft, wilful damage, possession of a knife in a public place, and escaping from police custody. On the same date he was sentenced in relation to charges of burglary, attempted unlawful taking of a motor vehicle and wilful damage, which related to incidents on 30 July 1992 and 10 September 1992. He received a sentence of corrective training for all this offending.
[3] On 25 August 1993 Mr W was sentenced to three years, nine months’
imprisonment for an aggravated robbery involving a firearm on 27 May 1993.
[4] In 1996 Mr W was convicted of being unlawfully on property, obscene language, and driving with excess breath alcohol. He was fined in relation to unlawfully being on a property, and was disqualified from driving and sentenced to no-resident periodic detention in relation to driving with excess breath alcohol. On
26 February 1997 Mr W was charged with driving whilst disqualified and failing to stop for a police officer.
[5] While on bail for the driving offences and at the age of 21 Mr W and an accomplice committed several violent offences on 28 March 1997. The offences were robbery by assault, aggravated robbery (x2), injuring with intent to injure,
breaking and entering, burglary, aggravated injury, aggravating wounding, and injuring with intent cause grievous bodily harm.
[6] The offending spree had begun when Mr W visited a burger bar. Without provocation he attacked a 15 year old youth, punching him in the nose and kicking him in the face. He then broke into a hotel. When discovered by the manager to be drinking from stolen bottles of spirits he struck the manager in the face with a full bottle. After leaving the hotel he and his accomplice violently robbed another person walking on the street. The publican’s wife came out to see what was happening. Mr W attacked her, punching and kicking her. He kicked her in the face and genitalia, injuring her vagina so much that she required surgery. A short time later he and his associates became involved in what the High Court Judge who sentenced him in August 1997 described as a “totally mindless attack on a group of young people sitting in a car, which eventually included stabbing of an innocent man”. The victims were robbed at knife point. One of them was stabbed in the chest by Mr W. Shortly after that incident Mr W committed a burglary at a sports store.
[7] Mr W received an effective sentence of seven and a half years’ imprisonment
for that spate of offending.
[8] On 27 June 2001 Mr W was released on parole. On 8 July 2001, less than two weeks after release, Mr W raped and indecently assaulted a 13 year old girl. Two days later when he found out the father of the victim was looking for him, he made a pre-emptive attack on the father and seriously assaulted him using a rake as a weapon. Mr W was sentenced to preventive detention for the sexual violation and three years’ imprisonment for the other offences.
[9] On 26 August 2002 the sentence of preventive detention was quashed on
appeal and replaced with a finite sentence of 14 years’ imprisonment.
[10] While in prison Mr W has been convicted of four further counts of assault: two counts of common assault, which occurred on 5 September 2005; one of assaulting a prison officer on 25 July 2010; and one of assault with intent to injure on 11 November 2014. In September 2005 Mr W and another inmate had a fight.
They were separated by two prison officers. When Mr W was pushed into his cell by the officers he immediately came out of the cell and punched the first officer, causing him to stagger backwards and fall on his back. Mr W then turned to the other officer, punching him on the head also. That prison officer stumbled backwards and hit his head on the cell door. As a result he was knocked unconscious. It was only when other staff arrived that Mr W was able to be restrained.
[11] More recently there was an incident in November 2014 involving an assault on a prison officer. Mr W delivered numerous punches to the officer’s head. The incident only ceased when other Corrections officers were able to come and restrain Mr W. Mr W says he was provoked, but the intensity of his actions in both those assaults in the prison support a finding of an intense drive or urge to commit serious violent offending.
[12] In addition to these convictions, Mr W has also been the subject of internal disciplinary proceedings arising from other incidents he has been involved in while in prison.
The purpose of an ESO
[13] According to s 107I of the Act, the purpose of an ESO is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences. In Mr W’s case it is accepted that in light of the evidence before the Court, the focus of concern is on his propensity to commit serious violent offences. The application is not
pursued on the basis of a propensity for serious sexual offending.1
Eligibility
[14] There is a threshold requirement which Mr W satisfies. He is an eligible offender under s 107C(1)(a). He was subject to a determinate sentence, was
sentenced to imprisonment for a relevant offence, and had not ceased, since his latest
1 That is consistent with the Court of Appeal finding in R v W CA135/02, 26 August 2002, (2002)
19 CRNZ 555, at [24] that: “The sexual offences are not indicative, by their type or
circumstances, of a dangerous propensity warranting a sentence of preventive detention”.
conviction for the relevant offence, to be subject to a sentence of imprisonment at the time the application for the ESO was made. The application was made before the sentence expiry date.2
[15] The matters the Court must be satisfied on before it can make an ESO are set out in s 107I. As relevant it reads:
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.
[16] In Mr W’s case the Court must be satisfied, having considered the matters addressed in the health assessor’s report, that Mr W:
(a) has, or has had, a pervasive pattern of serious violent offending; and
(b)there is a very high risk that he will in the future commit a relevant violence offence.3
[17] Mr W has a pervasive pattern of serious violent offending while in the community. That pattern of violent offending has continued even while in prison (albeit that Mr W has not, while in prison, been charged with offences meeting the
definition of serious violent offences under the Act).
2 Parole Act 2002, s 107F(1)(a).
3 Relevant violent offences are set out in s 107B(2A).
[18] The Court may only determine that there is a very high risk that Mr W will commit a relevant violent offence if it is satisfied that he meets the criteria in s 107IAA. In the present case, as the application is directed at the risk of Mr W committing a relevant violent offence, the relevant provision is:
(2) A court may determine that there is a very high risk that an eligible offender will commit a relevant violent offence only if it is satisfied that the offender—
(a) has a severe disturbance in behavioural functioning established by evidence of each of the following characteristics:
(i) intense drive, desires, or urges to commit acts of violence; and
(ii) extreme aggressive volatility; and
(iii) persistent harbouring of vengeful intentions towards
1 or more other persons; and
(b) either—
(i) displays behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal; or
(ii) has limited self-regulatory capacity; and
(c) displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.
[19] The provisions in the Act relating to an ESO were amended in December
2014 at the same time the Public Safety (Public Protection Orders) Act 2014 was passed. A number of the requirements of s 107IAA are similar, albeit not identical, to the considerations under the Public Safety (Public Protection Orders) Act. There are however additional considerations, namely whether Mr W exhibits the characteristics of extreme aggressive volatility and persistent harbouring of vengeful intentions towards one or more other persons.
[20] Under the Public Safety (Public Protection Orders) Act the Court must be satisfied the respondent exhibits the characteristics to a high level. The requirements for an ESO are not at that elevated level. It is sufficient for an ESO if the characteristics are present.
[21] The considerations set out in s 107IAA(2) are mandatory and conjunctive. The Court must be satisfied as to each of those factors before it can determine there is a very high risk Mr W would commit a relevant violent offence.
[22] In this context, to be satisfied requires the Court to make up its mind and on the evidence come to a judicial decision: McDonnell v Chief Executive of the Department of Corrections.4
[23] There is a substantial amount of evidence before the Court. Four witnesses gave evidence in relation to the PPO: Dr Skipworth, Dr Goodwin, Dr Blackwell and Mr Britton. All are health assessors in terms of the Act and counsel agreed their evidence is also admissible on this application for the ESO. For the purposes of the ESO the Department also led the further evidence of Mr Louw, a psychologist. Mr W declined to be interviewed by Mr Louw. Mr Louw had access to all Mr W’s files and notes and based his report on those reports and other relevant material.
Does Mr W have intense drive, desires or urges to commit acts of violence?
[24] As relevant, I repeat the passages from my decision on the PPO in relation to these issues.
[25] Dr Skipworth’s focus was on the current situation rather than Mr W’s past behaviour. He focused on Mr W’s recent behaviour and engagement and noted Mr W denied any such urge.
[26] Dr Goodwin’s focus was on the issue of sexual drive rather than a drive in relation to violent offending. He could not detect any evidence of intense drive or urge, noting Mr W has always stated that he has never had any attraction to pubertal or prepubertal females and that he was quite willing to engage with appropriate treatment for sexual offending.
[27] Dr Blackwell also focused on the present situation, noting that Mr W had self
reported to her that he acknowledged it was time to “grow up instead of blaming
4 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352 (CA).
other people for stuff”. She also noted his current intention to settle into a domestic
relationship.
[28] Mr Britton on the other hand considered that Mr W’s offending history, and prior psychological assessments, when taken with his current assessment indicated that he had such an intense drive or urge to commit offences of violence.
[29] In Mr Britton’s opinion Mr W’s conduct in 1997 indicated he was undeterred by the presence of bystanders and their attempts to intervene, which is evidence of a strong urge towards violence.
[30] Similarly, the circumstances which led to Mr W attacking the father of the girl that he raped and indecently assaulted are evidence of an urge towards violence. It appeared that when Mr W became aware the father knew of the sexual assault on the man’s daughter his response to it was to assault the father to the head with a garden rake.
[31] Mr W’s convictions for violence at the prison are also relevant.
[32] In addition, Mr Louw also considered that Mr W’s offending history and institutional conduct indicated a persistent pattern of hostile violent ideation and justification for the use of violence to meet his own needs. In his opinion Mr W has continued to display a strong drive to commit acts of violence, evidenced by his being capable of using violence as a means to an end which has continued during his present period of incarceration.
[33] The urge or drive need not be presently manifested. The issue is whether Mr W still has the characteristic, rather than the circumstances in which it might apply. Both Mr Britton and Mr Louw have considered the issue of drive in relation to Mr W’s history of offending.
[34] That is consistent with the approach of the Court in Chief Executive of the Department of Corrections v Wrigley and Chief Executive of the Department of Corrections v Rimene.5
[35] I am satisfied that there is evidence that Mr W has an intense drive or urge to commit violent assaults against others. Whether that urge or drive is unleashed will depend on the situations that Mr W finds himself in.
Does Mr W have extreme aggressive volatility?
[36] This characteristic was not expressly considered by the experts when considering the requirements for the PPO as it is not one of the relevant characteristics under the Public Safety (Public Protection Orders) Act 2014. It is, however, closely aligned to the concept of limited self regulatory capacity when violence is the focus of the inquiry. I note the Court must be satisfied of an extreme aggressive volatility.
[37] In Mr Louw’s opinion Mr W’s violent offending in March 1997 showed a capacity for extreme aggressive volatility which he again demonstrated in July 2001 when he assaulted the father of the girl he had sexually assaulted. In Mr Louw’s opinion, while the violence in prison was less harmful, Mr W’s conduct still indicated a continuation of this pattern of volatility.
[38] I agree. I am satisfied Mr W discloses a significant or extreme degree of aggressive volatility. The offending in March 1997 was random and vicious. To attack the father of the girl that he had raped in July 2001 (two days after the rape) also displayed his aggressive nature was uncontrolled and volatile. Mr W’s volatility is apparent from the way he reacts to situations of confrontation and from the extent
of his reaction. It is extreme.
5 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712, and Chief
Executive of the Department of Corrections v Rimene [2015] NZHC 2721.
Does Mr W persistently harbour vengeful intentions towards one or more other persons?
[39] In Mr Louw’s opinion Mr W has a capacity for harbouring vengeful thoughts and, concerningly, displacing them onto others. That was a feature of the assault on the publican’s wife in March 1997. He had been ruminating about his girlfriend going out with his sister and had feelings of jealousy and anger which led to his violent attacks on a number of people. Mr W also acknowledged that his 2001 sexual offending was a culmination of hostile rumination towards the victim’s family. He was reported to have acknowledged fantasies of burning down the family’s home upon release and wanting to ruin their lives. This was reported by Mr W to a Mr Neil in an interview on 14 September 2012. Mr W also acknowledged in discussions with a Ms E Suttich on 24 May 2011 that he struggled to control his thoughts and feelings and that he was concerned he might act violently or explode based on negative ruminations of others. The attack on a fellow prisoner in December 2010 was preceded by an expression of a desire to harm him and waiting for a moment to act.
[40] Dr Blackwell also accepted that once Mr W perceived or got into his mind that he had been wronged, he acted out his vengeful intention.
[41] On the basis of the evidence taken as a whole (particularly Mr Louw’s evidence which was not seriously challenged on this point), and Mr W’s history, I am satisfied Mr W has persistent vengeful intentions, not necessarily towards one particular person but directed at whomever he considers may have slighted him at the time.
Does Mr W display behavioural evidence of clear and long-term planning of serious violent offences?
[42] Mr Louw considered there was evidence of long-term planning of serious violent offences to damage the girl’s family in particular. He suggested that long- term planning was also evidenced when Mr W became aggressive and verbally threatening, picking up the chair and smashing the guard room’s window in July
2014 in order to achieve his aim of a change in placement at the prison.
[43] I do not consider the examples Mr Louw refers to amount to “clear and long- term planning … to meet a premeditated goal”. While Mr W may have ruminated about his position before acting as he did, the incidents were still examples of him reacting to the situation as he perceived it to be, rather than clear planning on his part. Mr W’s offending is largely unplanned and random, which of itself is a particular concern.
Does Mr W have limited self regulatory capacity?
[44] In the alternative to clear and long-term planning of violent offending the
Court must be satisfied of Mr W’s limited self-regulatory capacity.
[45] Dr Skipworth believes Mr W has a “significant deficit” in relation to this characteristic, which is evidenced by his ongoing aggressive outbursts in stressful situations when frustrated or challenged or when he perceives he is being denigrated. Mr W’s difficulties in the area have been exacerbated in the context of intoxication and have led to offending on many occasions.
[46] Dr Goodwin is of the opinion that there is some evidence in Mr W’s history of impulsivity, but no evidence of high emotional reactivity or an inability to cope with or manage stress and difficulties.
[47] Dr Blackwell accepted that the historical evidence indicates that Mr W has in the past exhibited “limited ability” to self regulate his behaviour and emotions, which is consistent with his having borderline personality traits. But Dr Blackwell noted that during her interviews with Mr W he was emotionally stable at all times despite the sometimes intrusive and very personal nature of the questioning. She considers he may have obtained some improved control over his emotional reactivity.
[48] Mr Britton noted that at the time he interviewed Mr W on 20 August 2015 he was held in the Special Needs Block at Auckland Prison as a result of repeated aggressive and impulsive acts. He considered those acts were the result of Mr W’s pervasive and persistent emotional reactivity. Mr Britton noted that while Mr W had been provided with psychiatric and psychological treatment to assist with his
emotional reactivity and depressive ideation they did not appear to have produced lasting or robust improvements in terms of Mr W’s emotional function or self regulatory capacity at the time of the current assessment.
[49] In Mr Louw’s opinion also, Mr W’s offending background was indicative of a poor ability to regulate his own impulses and displayed a pattern of behaviour which remained in effect.
[50] I prefer Mr Britton’s and Mr Louw’s assessment. It is consistent with Mr W’s actions including while in prison. I am satisfied that Mr W displays a very limited ability to self-regulate. He is unable to cope with or manage stress and difficulties. That was apparent in his earlier offending and it is still apparent even in the regulated environment of a prison.
Does Mr W have an absence of understanding or concern for the impact of his offending on actual or potential victims?
[51] Dr Skipworth considered that Mr W has “some” deficits in the area of empathetic understanding but did not consider he was without any understanding in this area.
[52] Dr Goodwin said he was unable to ascertain any absence of understanding or concern, noting that Mr W had expressed concern as to how his release might be seen by the victims and the victims’ family. He considered Mr W had the ability or capacity for empathy and an understanding of the deleterious nature of his actions on others.
[53] Dr Blackwell noted Mr W was able to report concern and describe the likely impact of his past offending on his victims. He had a very strong shame presentation. However she did accept that he exhibited a limited ability to feel empathy or to have emotional understanding of others.
[54] Mr Britton considered that it was of concern that a number of Mr W’s victims had been strangers or recent acquaintances. He noted that some of the victims had been selected in order to cause anguish to third parties such as victims’ family
members. Attempts to interrupt Mr W during commission of the offences had resulted in him assaulting bystanders or those attempting to intervene. In addition, in his interview with Mr Britton, Mr W continued to blame the victim of his 2014 assault. Mr Britton noted that while Mr W was reported to have gained some insight into his offending-related attitudes during recent treatment, he did not engage in other aspects of the treatment as he was concerned with how others might view him.
[55] Mr Louw notes that Ms E Suttich noted Mr W had a dominant shame presentation during treatment. Dr Blackwell has also noted the same effect. In Mr Louw’s opinion it is not clear whether the shame is predominantly linked to the impact on Mr W and the distress caused to him or his family, or whether it is indicative of some remorse in relation to his victims. In his opinion the past pattern of ruminative cognitions and vengeful actions suggests any concern as to the impact of his offending on the victims have done little to mitigate Mr W’s risk of offending.
[56] Taken overall the impression I am left with is that while Mr W may have expressed some understanding that his offending affects others, he does not have any particular empathy with the victims of his offending and is more focussed on the impact of his offending on himself. I am satisfied that he displays an absence of real understanding about the impact of his offending on his victims.
Is there a very high risk that Mr W will commit a relevant violent office in the future?
[57] I return to consideration of the ultimate issue, whether there is a very high risk that Mr W will commit a relevant violent offence in the future.
[58] Taken overall Mr Louw’s opinion was that there was a very high risk Mr W would engage in relevant serious violent offending within 10 years of release. The most likely scenario would include the use of instrumental violence against members of the public.
[59] Even those witnesses who did not consider Mr W to meet the criteria for a Public Protection Order considered that the close supervision provided for by an ESO would be appropriate. Dr Goodwin for instance said that he was of the opinion
supervision would certainly be of great assistance in Mr W’s release into the
community:
… it’s just that often those type of orders ESOs can actually be very
helpful in continuing treatment with somebody like Mr W.
Q. So in this particular case would an ESO be a good measure to ensure that he had adequate supervision and monitoring in the community?
A. It would certainly be helpful.
Later, in answer to a question from the Court, Dr Goodwin confirmed that he would in principle support such an order.
[60] In her report Dr Blackwell also stated that Mr W requires a detailed and graduated release plan co-ordinated by one responsible person and involving a multi- disciplinary team. She noted Mr W had indicated a willingness to comply with post parole supervision and would consent to an ESO and accepted the need to embrace supervision and support in the community. During her evidence she clarified that perhaps she should not have referred to an ESO report as her focus was on the criteria for a PPO. Nevertheless her overall evidence was supportive of the need for an ESO. Mr W does not have any realistic release plan.
[61] Again, the analysis and evidence from the PPO hearing is relevant to this issue. Mr W had a RoC*RoI score indicating a high risk of imprisonment within five years of being released.6 I put to one side the Automated Sexual Recidivism Scale as this application is now advanced on the basis of the serious violence. On the Violence Risk Scale (VRS) 18 of the 20 dynamic items were identified as moderately or strongly related to his current violent risk. The identified factors were violent lifestyle, criminal personality, criminal attitudes, work ethic, criminal peers, interpersonal regression, emotional control, violence during incarceration, weapon
use, insight into violence, substance abuse, community support, release to high risk situations, violent cycle, impulsivity, and cognitive distortion, compliance with supervision, security level of release, institution. These factors are considered
potential treatment targets for Mr W will provide a base line for change.
6 The RoC*RoI, or risk of reconviction/risk of imprisonment model is an actuarial risk measure which predicts an offender’s risk of re-imprisonment.
[62] A number of points must be made about those actuarial assessments. Mr W falls into the “high risk” category for the VRS. That is the highest category that there is. While Mr W falls in the medium to high on the RoC*RoI scale rather than the very high for that scale, as the Court of Appeal have confirmed it is necessary to consider the actuarial assessments tools in context.7 As Dr Skipworth also said, the best form of risk assessment is a multi method assessment which looks not only at the risk assessment tools but also takes into account the clinical assessments of the individual, in this case Mr W.
[63] Despite the evidence from the experts the issue is ultimately a matter for the Court to determine. In Barr v Chief Executive of the Department of Corrections the Court of Appeal observed:8
[32] We wish to make it clear, however, that first instance Judges need not accept it as necessary, or right, to rubber stamp opinions of health assessors advanced by the Department of Corrections in ESO applications (and we make it clear that the Judge did not do that in this case). What is required is a careful assessment of all the historical and current factors, along with expert opinions of others, bearing in mind that an ESO can have substantial ongoing impact on an offender who has already completed the sentence imposed by the Court for the offending. The risk of reoffending has to be such that cannot properly be ignored when viewed against the gravity of likely re-offending. …
[64] Risk is contingent upon factors that are both environmental and inherent in the individual. The Court’s risk assessment should draw upon a variety of different sources of information. Such an approach also helps avoid the shortcomings of a mechanical and potentially formulaic assessment of risk, one that is overly reliant on static historical factors and potentially insensitive to features of the individual that change with time and context.9
[65] Patterns of past behaviour can be clear indicators of risk. In this regard Mr
W’s actions whilst in custody in prison, particularly in relation to the violent
incidents, are relevant.10
7 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627, (2007) 22 CRNZ 925 at [52].
8 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006.
9 R v Peta, above n 7.
10 Rosewarne v R [2015] NZCA 537; R v Neketai [2015] NZHC 396.
[66] I am satisfied that there is a very high risk that Mr W will commit a relevant violent offence in the future. The behavioural characteristics he exhibits underscore the fact he has real difficulty controlling himself in situations of conflict. He has been involved in several instances of relevant violent offending in the past. He has had very limited help with the issues underlying that offending and has limited interpersonal skills. His history of violent offending confirms the way he may react in situations where he considers he has been slighted. While I accept Mr W may not intend to offend again, if he is placed in a situation of conflict, there is a very high risk that he will react violently and commit a relevant offence.
Term
[67] A supervision order may not exceed 10 years. The term of the order must however be the minimum period required for the purposes of 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.11
[68] The Department seek an order for 10 years. Mr Britton suggested a 10 year period would be appropriate. Mr Clearwater submitted two years would be sufficient.
[69] Dr Blackwell noted that what is known from the research is that when high risk people reoffend they tend to reoffend quickly, and the rates of offending drop off quite considerably after about five years without a new offence.
[70] In Mr W’s case the main issue of concern will be the first few years after his reintroduction into society. He is now 40 years old. While older men may still commit serious acts of violence, as he gets older and becomes more settled under the
controlled regime that will be in place, the risk of violence can be expected to fall
11 Section 107I(4) and (5).
away as Dr Blackwell observed. I am satisfied this is a case where it is not necessary to impose the maximum permitted term of 10 years. I consider a term of seven years is the minimum period required to achieve an appropriate balance between the risk of harm and the likely duration of the risk.
[71] I am also satisfied in this case that it is appropriate to impose special conditions, initially including intensive monitoring. Mr W has been removed from society for much of the last 20 years. His reintroduction to society will be challenging, particularly initially. He will need intense monitoring extending to personal support for the first few months.
[72] For those reasons I made the following orders:
The following special conditions are made in addition to or (where appropriate) in replacement for the standard conditions. Mr W is:
(a) to reside at an approved address as directed by a probation officer and not to move from that address without the prior written approval of a probation officer;
(b) to remain at the approved address at all times (unless granted approval from a probation officer to leave the residence) and to comply with all the requirements of the special condition of residential restrictions, as per s 33 of the Parole Act 2002, for the first 12 months of the Extended Supervision Order;
(c) to be subject to intensive monitoring and to submit to being accompanied and monitored, for up to 24 hours a day, by individuals who have been approved by a person authorised by the applicant to undertake person-to-person monitoring. That intensive monitoring is to run for a period of six months;
(d) to attend an assessment for alcohol and other drugs and complete any treatment/counselling as recommended by the assessment to the satisfaction of the probation officer and programme provider;
(e) to attend a psychological assessment and complete any treatment/counselling as recommended by the psychological assessment to the satisfaction of the probation officer and treatment provider;
(f) to engage with Community Mental Health as directed by the probation officer and/or treatment provider, to the satisfaction of the probation officer and treatment provider;
(g) to take (with his consent) any prescription medication prescribed to him by a medical practitioner;
(h) not to possess or consume any alcohol or illicit drugs;
(i) to notify his probation officer prior to starting, terminating or changing any position or place of employment; and
(j) to be electronically monitored (not GPS), and to comply with the requirements of electronic monitoring and provide access to the approved residence to the probation officer and representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by the probation officer (to enforce residence condition (b) above).
Suppression
[73] Mr W has had interim name suppression which has been continued until the delivery of the reasons for declining the PPO and for making the ESO.
[74] At the conclusion of the hearings, when I indicated the ESO would be made, Mr Clearwater sought permanent name suppression for Mr W. The application is opposed by the applicant and also by Mr Hobbs, representing TVNZ.
[75] I approach the application on the basis it falls to be considered in the context of the ESO application, as that is the final order made by the Court on these applications.
[76] Interim name suppression was granted by Courtney J.12 For present purposes I adopt the following relevant passages of the Judge’s reasoning in relation to the jurisdiction and approach to an application for the orders:
[6] The Parole Act makes specific provision for name suppression in relation to applications for extended supervision orders through s 107G(10), which imports the relevant provisions of the Criminal Procedure Act 2011:
Subpart 3 of the Part 5 of the Criminal Procedure Act 2011 (which relates generally to name suppression) applies, with all necessary modifications, to the hearing of an application for an extended supervision order as if the hearing were a proceeding in respect of an offence under any of ss 128 to 142A of the Crimes Act 1961.
[7] Section s 200 of the Criminal Procedure Act relevantly provides that:
(1) A court may make an order forbidding publication of the name, address or occupation of a person who is charged with, or convicted or acquitted of, an offence.
12 W v Chief Executive of Department of Corrections [2016] NZHC 469.
(2) The court may make an order under subsection (1) only if the
Court is satisfied that publication would be likely to –
(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b) casts suspicion on another person that may cause undue hardship to that person; or
(c) cause undue hardship to any victim of the offence;
or
(d) create a real risk of prejudice to a fair trial; or
(e) endanger the safety of any person; or
(f) lead to the identification of another person whose name is suppressed by order or by law; or
(g) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h) prejudice the security or defence of New Zealand.
[8] In Robertson v NZ Police the Court of Appeal reiterated the approach to be taken in considering an application under s 200(2):
As already noted by this Court in Fagan v Serious Fraud Office, the section contemplates a two stage analysis. Stage one is a threshold determination. Stage two is a discretionary assessment.
At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of the defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.
At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender
[9] Under this approach:
Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high. The onus is on the applicant to satisfy the Judge that suppression should be ordered.
[10] As to the meaning of “extreme hardship” the Court said:
… We consider it clear beyond argument that it connotes a very high level of hardship. The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is
required, while the word “extreme” in s 200(2)(d) indicates something
more again.
An assessment of whether the contended hardship is “extreme” cannot take place in a vacuum. It is self-evidently contextual and in our view must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published. It must be something beyond the ordinary associated consequences.
(citations omitted)
[77] Mr Clearwater relies on Dr Blackwell’s report as to the risk that Mr W may self harm to support the application for name suppression. He also suggested faintly there might be some basis to support name suppression to protect the victims of Mr W’s offending, but given the automatic name suppression by operation of the Criminal Procedure Act and the lack of connection between Mr W and the victims I put that ground to one side.
[78] Also, now that Mr W is no longer in prison, I put to one side his expressed concern about the possible violence from fellow prisoners. In any event that concern seems to arise out of the suggestion that he is a paedophile and such offenders are subjected to violence in prison. The evidence before the Court from the health assessors is that Mr W is not at a high risk of sexual offending. His sexual offending was not against children under the age of 12 or anything of a kind which would qualify him as a paedophile.
[79] The issue for the Court on the application for name suppression is limited to whether it can be said that if Mr W’s name is published that it would be likely to cause him extreme hardship or to endanger his safety.
[80] There are two material considerations. The first is whether publication of Mr W’s name might affect his compliance with the ESO order and reintegration into the community. Given Mr W’s lengthy criminal history and offending I accept he will experience embarrassment if his name is published in connection with the application for PPO and ESO. However that embarrassment falls short of being extreme. I note that Mr W’s name has not been suppressed in relation to the offending in the past.
[81] During the most likely period of publicity following delivery of these decisions, Mr W will be living in a controlled environment and under close supervision under the conditions of the ESO. In the circumstances I am unable to see that there would be a risk to his compliance with that order or to his reintegration into society at a level that could be said to be extreme hardship either.
[82] That leaves the issue of whether it could be said the risk of self harm is at a level where either it amounts to extreme hardship or Mr W’s personal safety is endangered. Dr Blackwell’s evidence about that is based on Mr W’s feelings of deep shame which are largely related to the suggestion that he is a child molester. Mr W has no prior history of self harming but has reported suicidal ideation. Dr Blackwell’s opinion is that the shame he may experience is based on negative assessments of his entire being and that it could contribute to significant mental health problems, including depression and suicidality.
[83] The possibility of suicide as a ground to support suppression has recently been considered by the Court of Appeal in D (CA443/2015) v Police.13 In that case the Court made the following points or observations:
[30] It is not uncommon for applicants to seek suppression on the ground that publication will cause them to self-harm or commit suicide. A review of the principal cases is instructive. A number of points may be made:
(a) The possibility of self-harm or suicide always gives a court cause for anxious consideration. Suicide would be a devastating and unacceptable consequence of publication and it cannot always be assumed that an at-risk person will behave rationally. But the court cannot adopt the stance that any risk is unacceptable. Under s 200 it must be satisfied that the relevant subs (2) risk is likely; that is, a real and appreciable possibility.
(b) Judges know that people may experience suicidal ideation when confronted with criminal proceedings, which are immensely stressful, but very seldom, if ever, act upon it. The proceeding is normally the principal cause of stress, although publication identifies the proceeding with the defendant and may cause great anxiety at particular points in time.
13 D (CA443/2015) v Police [2015] NZCA 541.
(c) For these reasons a defendant who relies on a risk of self- harm or suicide attributable to publication of his or her name must normally point to something more than the usual feelings of anxiety and despair that may attend proceedings. It is usual to offer evidence that the defendant is psychologically troubled for other reasons and is particularly susceptible to publicity. This may be coupled with
(d) The defendant’s condition may be such that it also impinges on his or her ability to participate fully in the trial. If so, there is a fair trial risk to consider as well.
(e) Anything that reinforces or mitigates other risk factors may affect the likelihood that publication will precipitate self- harm or suicide.
(f) The opinions of medical professionals deserve respect, but a court need not defer to them. It is unlikely to question an uncontradicted medical diagnosis of the defendant’s condition, but such opinions may assume that any risk is too much risk or (as in this case) urge suppression without adequately addressing alternative ways in which the risk might be managed.
(g) There normally are ways of managing the risk. Where possible, medical reports prepared to assist the courts should recommend and evaluate those options. For example, a brief period of suppression may reconcile the defendant to the inevitability of publicity after the initial shock of arrest and first appearance. Support structures can be identified and deployed. Sensitive information of a personal nature may be suppressed.
(h) Suppression does not follow automatically from the court being satisfied that a relevant risk exists. The court must further consider the second issue: whether an order ought to be made in the exercise of discretion.
(Citations omitted)
[84] Importantly in the present case, as a result of the ESO Mr W is subject to intensive supervision for a period of six months during which it can be expected the media storm will pass. He is also subject to and will have the support and access to medical treatment for any issues of depression. Any fair and accurate report would not suggest Mr W was a paedophile. In the circumstances I am unable to find that Mr W satisfies the first stage threshold criteria for permanent name suppression.
[85] If I am wrong in that, I consider that in any event the balance favours publication. The applications for the PPO and ESO are of proper public interest. The Court’s consideration of whether a PPO or ESO order should be imposed is a
matter of some importance. It is important for the issues to be debated and considered with all the circumstances disclosed, including the identity of the respondent, particularly where the respondent has been convicted of serious criminal offending in the past and his name has not been suppressed in relation to that offending.
[86] It is also relevant that Mr W has in the past been identified in connection with these applications in at least two media articles. The public interest in publication of a matter of this kind outweighs Mr W’s personal interests.
[87] It was quite proper that Mr W had the protection of interim name suppression to enable him to prepare properly for the applications at a time when he was still in prison and perhaps without the level of support that he can reasonably expect under the ESO. Those reasons for suppression no longer apply.
[88] For those reasons the application for permanent name suppression is declined.
[89] Mr Clearwater indicated that if the application for permanent name suppression was unsuccessful he might well receive instructions to appeal that decision. To enable him to consider the matter further I make an order for interim name suppression for a further period of 20 working days from delivery of this decision.
[90] In the event that an appeal has not been filed with the Court of Appeal within that time the interim order will lapse.
Venning J
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