Chief Executive of the Department of Corrections v Clements

[2021] NZHC 1383

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-11

[2021] NZHC 1383

UNDER

the Parole Act 2002

IN THE MATTER

of an application for an Extended Supervision Order and Intensive Monitoring

BETWEEN

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Applicant

AND

REUBEN JOHN CLEMENTS

Respondent

Hearing:

27 May 2021

Appearances:

P A Currie for Applicant

T R Nicholls for Respondent
Respondent in person (by AVL from Rimutaka Prison)

Judgment:

11 June 2021

[REDACTED] JUDGMENT OF OSBORNE J

[Reasons judgment]

This judgment contains redaction of personal or sensitive information.

This judgment was delivered by me on 11 June 2021 at 3.30 pm Registrar/Deputy Registrar

Date:

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CLEMENTS [2021] NZHC 1383 [11

June 2021]

[1]    After hearing from counsel on 27 May 2021 in relation to the application of the Chief Executive of the Department of Corrections for an extended supervision order (ESO) and an intensive monitoring condition, I granted the following orders:

(a)in relation to Reuben John Clements an extended supervision order for a term of 10 years commencing on 26 December 2020; and

(b)an intensive monitoring condition attached to this extended supervision order until the first anniversary of Mr Clements’ sentence release date.

[2]I made the orders having considered:

(a)the reports of Katrina Falconer Beach (18 February 2020 and 17 November 2020), a registered clinical psychologist; and

(b)the report of Dr Clare Brindley (18 September 2020), also a registered clinical psychologist (as well as a forensic psychologist and neuropsychologist).

Mr Clements’ background

[3]    Mr Clements is 46 years old having been born on 27 October 1974. He was first convicted for sexual offending in 1993 when 18 years of age. The health assessment report states that this (prolonged) offending occurred against [REDACTED] when Mr Clements was [REDACTED]. It involved a range of sexual behaviour. Since then Mr Clements has accumulated a further seven convictions for sexual offending, with sentencings occurring in 1996, 2017 and 2018. Five of the convictions have been for relevant sexual offences.1 Mr Clements has received a range of sanctions for these offences, ranging from an initial supervisory sentence (of 16 months, in 1993) through to two years and six months imprisonment (2018).

[4]    Mr Clements’ 2018 conviction was for possessing objectionable publications, knowingly distributing objectionable publications, and failing to comply with

1      “Relevant sexual offence” having the meaning defined in Parole Act 2002, s 107B(2).

reporting obligations. The summary of facts pertaining to these offences identifies that offending occurred through messages on Mr Clements’ cell phone. In some of these conversations, Mr Clements described himself as a 9-year-old female child, asking for objectionable material to be sent to him. Mr Clements also distributed objectionable material (being child exploitation videos) on five separate occasions. Objectionable material was also found on the cell phone, predominantly involving female children and young persons.

[5]    In June 2020, Mr Clements was released from prison, subject to release conditions, and ultimately transferred to a facility on prison land on 21 July 2020. On 4 August 2020, he was found (in breach of his release conditions) in possession of a device capable of storing images and accessing the internet. He had been messaging children in a sexually explicit manner, requesting and receiving images of genitalia from a 15-year old victim, and sending images and videos of his genitalia.

The application

[6]    An ESO, for a term of 10 years, was previously made in the District Court under the Parole Act 2002 (the Act) on 24 November 2020, and ordered to take effect from 26 December 2020. The standard conditions applied. Further interim special conditions were imposed on 15 December 2020.

[7]    The Chief Executive then applied to this Court for an ESO pursuant to s 107F of the Act, together with an order requiring the Parole Board to impose (under          s 107IAC of the Act) intensive monitoring on Mr Clements.

[8]    Under s 107IAB of the Act, it is only the High Court which may impose an intensive monitoring condition — hence the application to this Court. Having regard to the fact that the District Court had already made an ESO, the rationale of the present application is that Mr Clements requires intensive monitoring in addition to being subject to an ESO.

[9]    For his part, Mr Clements, having initially opposed the several aspects of the application, no longer opposes the making of the orders sought by the Chief Executive.

The statutory regime

[10]   Applications for an ESO are provided for under s 107F of the Act, which relevantly provides:

107F    Chief executive may apply for extended supervision order

(1)    The chief executive may apply to the sentencing court for an extended supervision order in respect of an eligible offender,—

(a)where the offender is subject to a sentence of imprisonment, at any time before the later of—

(i)the sentence expiry date of the sentence to which the offender is subject that has the latest sentence expiry date, regardless of whether that sentence is for a relevant offence; and

(ii)the date on which the offender ceases to be subject to any release conditions; or

(b)where the offender is subject to an extended supervision order, at any time before the expiry of the order; or

…

(2)    An application under this section must be accompanied by a report by a health assessor (as defined in section 4 of the Sentencing Act 2002).

…

[11]   I must be satisfied of the following matters set out in s 107I of the Act before I make an ESO:

107I     Sentencing court may make extended supervision order

(1)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 serious sexual or violent offences.

(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.

(Emphasis added)

[12]   Here, I must be satisfied that, having considered the matters addressed in the health assessors’ reports, Mr Clements:

(a)has, or has had, a pervasive pattern of serious sexual offending; and

(b)there is a high risk that he will in future commit a relevant sexual offence.

[13]   A Court may only be satisfied there is a high risk of Mr Clements’ committing a relevant  sexual  offence if it  is  satisfied that he meets  the mandatory  criteria in   s 107IAA of the Act, which relevantly provides:

107IAA         Matters court must be satisfied of when assessing risk

(1)A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—

(a)    displays an intense drive, desire, or urge to commit a relevant sexual offence; and

(b)    has a predilection or proclivity for serious sexual offending; and

(c)    has limited self-regulatory capacity; and

(d)    displays either or both of the following:

(i)a lack of acceptance of responsibility or remorse for past offending:

(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.

[14]   Section 107IAB provides for the imposition of an intensive monitoring condition (attaching to an ESO) by application of this Court:

107IABChief executive may apply for imposition of intensive monitoring condition

(1)When the chief executive makes an application under section 107F for an extended supervision order, he or she may at the same time apply to the sentencing court for an order requiring the Board to impose an intensive monitoring condition on the offender under section 107IAC.

(2)If the chief executive makes an application under this section, the sentencing court is, for the purpose of that application and the corresponding application under section 107F, and despite anything in section 107D, taken to be the High Court.

[15]   There is no statutory test regarding the imposition of an intensive monitoring condition. Such a condition will be imposed only where the risk is considered to be very high and where offenders are considered to need external controls to mitigate that risk.2 Its special value may be viewed as asserting external control at a transitional point of high risk.3

Standard conditions

[16]Under s 107J(1)(a) of the Act, standard conditions apply to all ESOs.4

Eligibility

[17]   Mr Clements qualifies as an eligible offender under s 107C of the Act. He was subject to a determinate sentence of imprisonment for relevant offences as defined in s 107B. The sentence has not been quashed or otherwise set aside. Mr Clements has not ceased to be subject to release conditions or an ESO since his last conviction.

A pervasive pattern of serious sexual offending (s 107I(2)(a))

[18]   Ms Currie, for the Chief Executive, submitted that a pervasive pattern of serious sexual offending by Mr Clements has been demonstrated by the number of victims and his repeated offending. A review of Mr Clements’ history of previous convictions reveals a pattern of serious sexual offending. I accept, as the Crown

2      Chief Executive of Department of Corrections v Paul [2017] NZHC 1294 at [39].

3      Chief Executive of Department of Corrections v Paniora [2018] NZHC 1505 at [46].

4      The standard extended supervision conditions are set out in Parole Act, s 107JA.

submits, that this conduct alone is sufficiently pervasive to serve as a predictor of future behaviour.

[19]   Mr Clements’ offending has spanned 30 years of his life. Successive sentences of imprisonment imposed from 1996 have not had any apparent deterrent effect upon him. He has a history of swiftly reoffending after release from prison and while on release conditions.

High risk of a future relevant sexual offence (s 107I(2)(b)(i))

Demonstration of intense drive, desire or urge to commit a  relevant sexual  offence (s 107IAA(1)(a))

[20]   Mr Clements has engaged from his adolescence through to middle-age in sexual offending against children involving both physical contact and non-contact. In Ms Falconer Beach’s opinion, this offending has varied according to the availability of potential victims and reflects a high degree of sexual preoccupation and compulsivity. Ms Falconer Beach notes that Mr Clements, while incarcerated, continued to have recurrent fantasies of children, while masturbating. He has not achieved an adult-focused sexual fantasy script. His offending has continued despite treatment for means of managing his deviant sexual impulses. Ms Falconer Beach observes that Mr Clements was more constructively engaged in recent treatment programmes but, despite this, she concludes that his urge to offend is likely to overwhelm this initial skill development. She highlights the fact that Mr Clements has no appropriate support to assist in challenging situations. In both her reports, Ms Falconer Beach concludes that Mr Clements displayed signs of an intense drive, and a desire and urge to commit a relevant sexual offence.

Predilection or proclivity for serious sexual offending (s 107IAA(1)(b))

[21]   Ms Falconer Beach notes that Mr Clements’ sexual activity has been predominantly with prepubescent victims despite his having same-age or adult sexual partners. Mr Clements told Ms Falconer Beach that secondary sexual characteristics were not (sexually) attractive to him. He acknowledged that he spent most of his free time attempting to contact under-age females online or viewing objectionable images. Ms Falconer Beach’s second report highlights further behaviour of Mr Clements that

indicates his sexual preference for people in the prepubescent age group. Ms Falconer Beach instances Mr Clements’ conversation with a 15-year old female, [REDACTED], and [REDACTED]. In both reports, Ms Falconer Beach opines that Mr Clements has a predilection and proclivity for serious sexual offending.

The offender’s self-regulatory capacity (s 107IAA(1)(c))

[22]   Ms Falconer Beach posits that Mr Clements has demonstrated a pattern of repeatedly placing himself in high risk situations, and then offending, even when the chance of detection was high. He has offended following sanctions and treatment for sexual offending, and while under the supervision of the Department of Corrections. Ms Falconer Beach suggests this is because he either struggled or did not intend to regulate his sexual impulses. Mr Clements’ offending has been both planned and opportunistic and has been consistent over most of his lifetime. Ms Falconer Beach notes that Mr Clements has issues self-regulating in other areas of his life, either intentionally or through his lack of ability to do so. She considers that he displays little capacity to regulate himself sexually.

The offender’s acceptance of responsibility or remorse for past offending (s 107IAA(1)(d)(i))

[23]   Mr Clements reported that he feels responsible for his behaviours and described feeling remorseful for his victims. Ms Falconer Beach notes these are recently acquired views and that Mr Clements often, in his natural response to queries about responsibility, reflects a degree of belief that the behaviour was mutually consensual. He blamed external forces for his offending. Prior to treatment he believed sexual activity with children was not harmful to the victim. In the first report Ms Falconer Beach finds that Mr Clements’ newfound stance on responsibility and remorse is “fragile” and in the confines of a treatment programme within a prison unit. In the second report she highlights Mr Clements’ recent offending against the 15-year- old female and records that his offending against that person indicates that he either lacks the ability or desire to feel remorse about his offending.

The offender’s understanding or concern about the impact of his offending on actual or potential victims (s 107IAA(1)(d)(ii))

[24]   Ms Falconer Beach in her first report observed that whilst Mr Clements has reported an understanding and concern for victims and potential victims, this was largely based on his own experience. In her second report, given the fresh offending in which Mr Clements sent and received explicit images to the 15-year old female, Ms Falconer Beach concluded that Mr Clements has no concern for his actual or potential victims and no understanding of the impact of his offending on them.

Other relevant considerations

[25]   The health assessment report for Mr Clements detailed the clinical risk factors that have been considered. Actuarial instruments were utilised to evaluate the risk Mr Clements presents of committing further relevant sexual offences while in the community.

[26]   The Automated Sexual Recidivism Scale-Revised (ASRS-R) places Mr Clements in a group that has been classified as at medium-high risk. The STATIC-99R (Coding Rules 2016) placed Mr Clements in the “well above average risk”. Lastly, the Violence Risk Scale: Sexual Offense Version assessed Mr Clements as being in the high risk category.

[27]   Ms Falconer Beach concluded, based on the multi-method assessment of Mr Clements’ risk of further relevant re-offending, that there is a high risk of Mr Clements’ committing a further relevant offence while in the community.

[28]   In her overall conclusion in her second report, taking into account all of the factors, Ms Falconer Beach concluded that “Mr Clements is considered to have a high (Well Above Average) risk of committing a further relevant sexual offence.”

Conclusions as to pattern of past offending and risk of future offending

[29]   In the foregoing review of evidence, I have drawn particularly upon the reports of Ms Falconer Beach. The conclusions reached by Dr Brindley are parallel. Dr Brindley’s risk assessment is that Mr Clements’ overall risk category of sexual

recidivism is high. I have refrained from drawing particular observations from Dr Brindley’s report, not by reason of any preference for the conclusions in one report or the other but because (by reason of the parallel conclusions) reference to Ms Falconer Beach’s reports alone adequately serves to explain my conclusions.

[30]   I was satisfied on the information provided to the Court that Mr Clements has and has had a pervasive pattern of serious sexual offending, dating to when he was 13 years old. There are multiple dynamic risks associated with his offending. There is a high risk that he will in future commit a relevant sexual offence.

[31]   On 27 May 2021 I exercised a discretion as to whether or not to make an ESO.5 I recognised that to not make an ESO when I am satisfied of the statutory criteria established would be exceptional given the high threshold and the statutory concern for public safety.6

Term of the ESO

[32]   The term of the ESO must not exceed ten years, and must be stated in the order made.7 Section 107I(5) provides:

(5)The term of the order must be the minimum period required for the purposes of the safety of the community in light of—

(a)the level of risk posed by the offender; and

(b)the seriousness of the harm that might be caused to victims; and

(c)the likely duration of the risk.

[33]   The Chief Executive sought a term of 10 years. Mr Clements, through Mr Nicholls, did not oppose such a term.

[34]   In Ms Falconer Beach’s opinion, Mr Clements is considered to have a high risk of committing a further relevant sexual offence. She suggested that if the dynamic risk factors remain unaddressed then this risk will remain at a high level over the long term.

5      Chief Executive of Department of Corrections v Popata [2017] NZHC 2343 at [9].

6 At [57].

7      Parole Act, s 107I(4).

[35]   Given the expert opinions as to the high risk of reoffending and the serious harm that in that event might be caused, I was satisfied that an ESO made for a period of close to 10 years is the minimum required to address the risk Mr Clements posed to the safety of the community.

[36]   The ESO imposed in the District Court has been in effect from 26 December 2020. In making a fresh ESO, I am not strictly required to take into account the fact that it is replacing another ESO which has been in place for a relatively short time. The term of any ESO (not permitted to exceed 10 years) is ultimately to be determined by the minimum period required to meet the risk assessments as provided for in       s 107I(5) of the Act. I invited submissions from Ms Currie, for the Chief Executive, as to whether any term beyond one expiring on 26 December 2030 was required on the evidence for community safety purposes under s 107I. She accepted that a term expiring on 26 December 2030 would appropriately meet the requirements of the legislation.

[37]That is the term which I therefore attached to the ESO.

Intensive monitoring

[38]   I found, by reason of the high risk posed by Mr Clements and the seriousness of the harm which he might cause to victims, that it is important that he be the subject of intensive monitoring. Ms Falconer Beach identified that the only form of risk reduction likely to succeed in Mr Clements’ case is a high degree of continuous external monitoring and management of his behaviour, with restriction upon his ability to access potential victims, either in person or through electronic means. The maximum period of intensive monitoring is limited to 12 months from the date on which an ESO is made and the (intensive monitoring) condition imposed.

[39]   On the evidence I was satisfied the duration of intensive monitoring should be 12 months from Mr Clements’ sentence release date.

Conclusion

[40]Orders were accordingly made on 27 May 2021.

Osborne J

Solicitors:

Crown Solicitor, Christchurch

T R Nicholls, Barrister, Christchurch