Chief Executive of the Department of Corrections v DJ
[2017] NZHC 1000
•15 May 2017
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF VICTIMS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2017-419-000029 [2017] NZHC 1000
BETWEEN THE CHIEF EXECUTIVE OF THE
DEPARTMENT OF CORRECTIONS Applicant
AND
DJ Respondent
Hearing: 15 May 2017 Appearances:
M L Dillon for the Applicant
Respondent on own behalfJudgment:
15 May 2017
ORAL JUDGMENT OF GORDON J
Solicitors: Crown Solicitor, Hamilton
Copy to: Respondent
CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS v DJ [2017] NZHC 1000 [15 May 2017]
Introduction
[1] The Chief Executive of the Department of Corrections has applied for an extended supervision order (ESO) with an intensive monitoring condition and, on an ex parte basis, an interim supervision order (ISO) with intensive monitoring. The Chief Executive also applies for a bail condition that Mr J comply with the intensive monitoring condition.
[2] Although the application for the (ISO) was made ex-parte, Mr J has been served with a copy of the application. He appears today without a lawyer. After some discussion with the Court Mr J indicated that he was prepared to proceed today. He opposes the making of the ISO.
Background
[3] Mr J is already the subject of an ESO for a term of 10 years made on 13 June
2014. On 25 June 2014, Mr J indecently assaulted a 20 year old female. He was sentenced on 6 October 2014 to a period of two years imprisonment for a historic offence of committing an indecent act on a three year old boy and a further ten months for the indecent assault cumulative on the two years. Both offences are relevant sexual offences in terms of the ESO regime under the Parole Act 2002.
[4] Although there is an ESO in force, that order does not include a condition of intensive monitoring. This has prompted the Chief Executive to make the application for a new ESO with an intensive monitoring condition. It is intended that the new ESO, if made, would replace the existing ESO.
[5] The ISO is designed to supplement what the Chief Executive sees as a deficiency in the existing ESO having regard, in particular, to the 25 June 2014 offending. That is, an interim condition imposing intensive monitoring is sought. The existing extended supervision conditions of the existing ESO would remain untouched until the substantive application for a new ESO is finally determined. In the meantime, the ISO, if made, would sit alongside the existing ESO.
[6] This procedural route has been taken because the Parole Board does not have the power to impose an intensive monitoring condition as a special condition of an existing ESO.
[7] The urgency of this hearing is occasioned by the fact that Mr J has been released from prison today. The application was not filed until 11 May 2017, notwithstanding the fact that Mr J’s release date must have been known for some time. There is no satisfactory explanation as to why the application was filed so late. This is a most unacceptable state of affairs.
[8] Counsel for the Chief Executive appeared by way of a telephone conference before Edwards J on 12 May 2017. The immediate issue for the Court to determine on that occasion was whether to grant the application on a without notice basis. The Court noted that an intensive monitoring condition would impose significant restrictions on the liberty of Mr J and considered that before incorporating such a condition, Mr J had the right to be heard. The Court also noted that there was hearing time available this afternoon and accordingly directed that the Chief Executive serve Mr J with the application and a copy of the Court’s Minute by 5 pm on 12 June 2017. Service was effected in accordance with the Court’s order.
[9] Late this morning, counsel for the Chief Executive sent notice to the Court that the conditions of the existing ESO had in fact been amended by the Parole Board.1 The new conditions place additional restrictions on Mr J’s movements. However, the Chief Executive still pursues his application because the conditions do not allow for person-to-person monitoring.
Interim supervision order
[10] The first issue to consider is whether an ISO can sit alongside an existing
ESO in the way that is proposed.
1 Mr Dillon was not aware of any application for a variation or any variation until shortly before he sent his email to the Court.
[11] There appears to be nothing in the Parole Act that prevents the making of an ISO while an ESO is in force. Section 107FA of the Parole Act provides for ISOs. The section relevantly provides:
107FA Sentencing court may make interim supervision order
(1) This section applies if, before an application for an extended supervision order is finally determined, 1 or more of the following events occur:
(a) the offender who is the subject of the application is released from detention:
(b) the offender who is the subject of the application ceases to be subject to an extended supervision order:
(c) the offender who is the subject of the application fails to appear at the hearing of the application and is brought before the court under a warrant issued under section 107G(3):
(d) an offender who is a person described in section 107C(1)(b)
arrives in New Zealand.
(2) The sentencing court may, on application by the chief executive, order that, until the application for an extended supervision order is finally determined, the offender is subject to the supervision conditions specified in the order.
…
[12] Mr Dillon submits that reading subss (1) and (2) together, an ISO may be made where:
(a) An application for an ESO has been made. That is the case in this proceeding.
(b)The application for an ESO has not been finally determined. Again, that is the case in this proceeding.
(c) The offender who is the subject of the ESO application is released from detention. That is the case in this proceeding. Mr J has been released from detention today.
[13] I accept that all the necessary prerequisites are established for the making of an ISO.
[14] Although there is an existing ESO in force, I am nevertheless required to consider whether there are grounds for making the interim order. I do so in relatively short order as the real focus for the purposes of this decision is whether or not the additional condition of intensive monitoring should be imposed.
[15] In Chief Executive of the Department of Corrections v Martin Davison J noted that s 107FA provides that the Court “may” make an order that an offender is subject to supervision conditions specified in that order; but the section does not contain a statutory test that must be satisfied before the Court can make an ISO.2
[16] Davison J referred to the statutory framework3 and continued:
[38] …the emphasis upon the safety of the community will clearly be a matter of significant weight in the Court’s assessment. In light of these considerations, the court should then decide whether those factors justify the temporary restrictions that will be imposed upon the offender pending the Court’s full consideration of the matter at the ESO hearing.
[39] If, having regard to those factors, the Court is satisfied that there is a sufficient and reasonable foundation for the ISO application – and that its operation will be of short duration and on conditions limited to those necessary to protect the safety of the public – the Court has the power to, and will be justified in, making an ISO.
[17] I agree with those comments.
[18] I have read the following material:
(a) Application for an ESO which includes summaries of facts for past offending; sentencing notes in relation to the offending; a report of Mr Robert Ngamanu, registered clinical psychologist, dated 31 March
2017; and an earlier report of Jo Hallett, registered psychologist, dated
5 February 2014 which preceded the making of the existing ESO; (b) Important notice;
(c) Department of Corrections key dates sheet;
2 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [34].
3 At [38].
(d) Ex parte application for ISO with intensive monitoring condition;
(e) Memorandum of counsel for the Chief Executive dated 11 May 2017. [19] In his report of 30 March 2017 Mr Ngamanu states:
Prior sexual offending
12Mr [J] has five previous convictions for relevant sexual offences which occurred on two separate occasions. In 2001 Mr [J] was convicted of ‘indecent act’ and ‘indecently assaults female 12-16’ [2] and sentenced to 1 year imprisonment. The victim was his 13 year old daughter. According to the Police summary of facts (undated) and sentencing notes of Judge J.L. Rota (6 July 2001) Mr [J] was 48 years old and had recently re-established a relationship with his daughter following a ten year period without contact. In February
2001 he invited her to stay at his home for the night. Later on that evening, he woke the victim, placed his hands under her clothing and
stroked her breasts and vagina. Mr [J] then placed the victim’s
hands on his penis and instructed her to masturbate him. When describing this offence, Mr [J] recalled watching pornography and
drinking alcohol while the victim showered. He claimed that,
following her shower, the victim walked through the house naked and “display[ed] herself” to him. He said this seemed to be “an invitation” to have sex. Mr [J] reported following the victim to her room where he indecently assaulted her. He noted that she did not resist his attentions and this appears to have confirmed his belief that the victim sought sexual contact. During the current assessment Mr [J] said that his daughter contacted him via social media in 2013 and wished to re-establish a relationship with him. He informed that this process had been hampered by community and custodial sentences.
13 In 2012 when he was 59 years of age, Mr [J] sexually assaulted his
14 and 16 year old granddaughters. As a result he was convicted of
‘does indecent act male with girl 12-16’ and ‘indecently assaults female over 16’ and sentenced to 16 months imprisonment. The
Police summary of facts (undated) and sentencing notes of Judge D.
C. Ruth (20 May 2013) indicated that he pinched and squeezed the breasts of his 14 year old granddaughter. On another occasion he placed his hands on his 16 year old granddaughter’s buttocks and touched her breasts underneath her clothing. The summary of facts noted that Mr [J] informed the victim that if she was not his granddaughter he would “tap her” (that is, have sexual intercourse with her). During a previous psychological assessment (J. Hallett,
31 January 2014) Mr [J] used language which appeared to minimise the severity of his behaviour, for example, he reported giving his granddaughter a “friendly tap on the bum”. He presented in a similar manner throughout the current assessment. For example, he stated that he accidentally brushed his 14 year old granddaughter’s breasts while he was “playing the goat” and trying to make her laugh. When discussing the offending against his older
granddaughter, Mr [J] stated that, in the period leading up to the assault he watched pornography and drank alcohol. He claimed that, immediately before the offence, the victim disclosed a sexual preference for older men and allegedly described masturbating a
50 year old male. Mr [J] said he was aroused by this conversation and believed his granddaughter was being deliberately provocative in order to initiate intercourse.
Index Offending
14 In 2003 when he was 51 years of age, Mr [J] sexually assaulted a
3 year old boy and was subsequently convicted of ‘does indecent act
with/upon boy under 12’. The victim was his half-sister’s grandson
(Mr [J]’s grandnephew). The sentencing notes of Judge R.L.B. Spear (9 September 2014) indicated that Mr [J] induced the victim to touch his penis before himself touching the victim’s penis. During the current interview Mr [J] stated that he had been watching pornography and consuming alcohol immediately before the offending occurred. He claimed the victim had approached him with a sore groin which he examined. He could not explain why he instructed the victim to hold his own penis but noted that he was aroused after viewing pornography and disinhibited due to alcohol consumption. In a previous psychological report (K. Jervis,
13 February 2017), Mr [J] stated that he was partially motivated by
vengeance as he claimed the victim’s grandmother (his half-sister)had sexually abused him when he was a young child. He appeared somewhat callous when describing this offence stating he should have told the victim to “piss off”. Mr [J] denied being sexually attracted to his grandnephew however, he also made statements regarding the victim’s appearance such as “he (the victim) was a good looking kid” and “he’s the best looking out of all the grandkids.”
15 In 2014 Mr [J] was convicted of ‘indecently assaults female over
16’. It should be noted that this offending occurred only 12 days
after a 10 year Extended Supervision Order was imposed. The
Police summary of facts (undated) and sentencing notes of Judge R.L.B. Spear (9 September 2014) record that in May 2014 Mr [J] was 61 years old and developed a friendship with a 20 year old female. On one occasion he offered to drive the victim to a nearby fast food restaurant. During the meal Mr [J] made several sexual comments. On the return drive he asked the victim if she would stay with him if he hired a motel room. He then put his hand under the victim’s top and bra and touched both of her breasts. During the current assessment Mr [J] noted that throughout the offending the victim did not push his hand away or ask him to stop which he believed indicated consent. As a consequences of this offending, Mr [J] was sentenced to 2 years and 10 months imprisonment and issued a final warning under the three strikes legislation. He is currently imprisoned at Spring Hill Corrections Facility.
[20] On the face of the documents, in particular the report of Mr Ngamanu, the Chief Executive has good grounds for his application for the making of an ISO in respect of Mr J.
Intensive monitoring condition
[21] As noted above, the real issue is whether an intensive monitoring condition should be imposed.
[22] Section 107FA(3) provides:
When the court makes an order under subsection (2) (an interim supervision order), it may impose any of the standard conditions that are (under section
107JA), or special conditions that may be (under section 107K), imposed under an extended supervision order.
[23] Section 107FA(4) then addresses intensive monitoring on an interim basis as follows:
If, under an interim supervision order, the court imposes an intensive monitoring condition or residential restrictions, the period for which the interim supervision order is in force is not to be taken into account for the purpose of the limits specified in section 107K(3)(b) and (ba).
[24] I am satisfied that the Court may make an interim supervision condition that the respondent is subject to intensive monitoring.
[25] Section 107IAC sets out when a court may make an intensive monitoring condition and defines an intensive monitoring condition as follows:
107IAC Court may order imposition of intensive monitoring condition
(1) When a sentencing court makes an extended supervision order in respect of an offender, the court may at the same time, on application by the chief executive made under section 107IAB(1), make an order requiring the Board to impose an intensive monitoring condition on the offender.
(2) An intensive monitoring condition is a condition requiring an offender to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the chief executive, to undertake person-to-person monitoring.
(3) The order must specify the maximum duration of the intensive monitoring condition, which must be no longer than 12 months.
(4) If the court makes an order under this section, the Board must impose an intensive monitoring condition on the offender as a special condition.
(5) The court may not make an order under this section in respect of an offender more than once, even if the offender is subject to repeated extended supervision orders.
(6) However, the court may make an order under this section in respect of an offender who was subject to an extended supervision order before the commencement of this section even if, under that order, the offender was at any time subject to a condition imposed by the Board under section 107K(2).
[26] As noted by Edwards J, an intensive monitoring condition would impose significant restrictions on the liberty of Mr J. The Chief Executive submits that such a condition is necessary for the protection of the public. The Chief Executive points to the fact that Mr J’s latest offending occurred a mere 12 days after the existing ESO was imposed. He says that this demonstrates that the existing conditions are insufficient to address the risk to the public. This submission is supported by the report of Mr Ngamanu, which was apparently requested to gauge the suitability of more intensive supervision than is afforded by Mr J’s current conditions. Mr Ngamanu concludes:
48Mr [J] has committed seven relevant sexual offences. Victims included a 3 year old male and four females aged between 13 and 20 years. Based on a multi-method assessment, it is considered that there is a high risk of Mr [J] committing a further relevant sexual offence. He exhibits an intensive drive, desire and urge to offend particularly when aroused, intoxicated or in proximity to potential victims. Furthermore he demonstrates a predilection and proclivity for serious sexual offending and displays a pattern of impulsivity and limited self-regulation. In the writer’s opinion he does not demonstrate remorse or accept responsibility for offending. There was mixed evidence that he understood the impact of his offending upon the victims. During the current sentence he was exited from two intensive treatment programmes, displayed offence paralleling behaviours and appears to have made limited therapeutic gains. As such his primary dynamic risk factors (identified via the administration of psychometric measures) remain largely unaddressed. In addition Mr [J]’s current release plan is considered insufficient to successfully mitigate his risk of sexual recidivism. Given the presence of multiple offence precipitants, Mr [J]’s high sex drive, predilection for sexual offending, and difficulty regulating his impulses it is likely that risk reduction will be more successful when supported by intensive external monitoring.
[27] The conditions of the existing ESO as varied are as follows:
(a) The offender must report in person to a probation officer in the probation area in which the offender resides as soon as practicable, and not later than 72 hours, after the commencement of the extended supervision order.
(b) The offender must report to a probation officer as and when required to do so by a probation officer, and must notify the officer of his or her residential address and the nature and place of his or her employment when asked to do so:
(c) The offender must obtain the prior written consent of a probation officer before moving to a new residential address.
(d) If consent is given under paragraph (c) and the offender is moving to a new probation area, the offender must report in person to a probation officer in the new probation area in which the offender is to reside as soon as practicable, and not later than 72 hours, after the offender’s arrival in the new area.
(e) The offender must not reside at any address at which a probation officer has directed the offender not to reside.
(f) The offender must obtain the prior written consent of a probation officer before changing his or her employment.
(g) The offender must not engage, or continue to engage, in any employment or occupation in which a probation officer has directed the offender not to engage or continue to engage.
(h) The offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer.
(i) The offender must not associate with, or contact, a person under the age of 16 years except in the presence and under the supervision of an adult who –
(i) Has been informed about the relevant offending
(ii) Has been approved in writing by a probation officer as suitable to undertake the role of supervision.
(j) The offender must not associate with, or contact, a victim of the offender without the prior written approval of a probation officer.
(k) The offender must not associate with, or contact, any specified person or persons of a specified class with whom a probation officer has in writing directed the offender not to associate.
“Contact” includes communicating, or attempting to communicate, with a person by any means, such as by telephone or via the internet.
(1) To reside at an address approved in writing by a Probation Officer, and not to move from that address without the prior written approval of a Probation Officer.
(2) Not to stay away overnight from your residence without the prior written approval of a Probation Officer.
(3) Not to purchase, possess or consume alcohol or illicit drugs.
(4) Not to enter any licensed premises (with the exception of supermarkets) without the prior written approval of your Probation Officer.
(5) To attend and complete a maximum of eight individual Department psychological appointments to the satisfaction of the psychologist and the Probation Officer.
(6) If assessed as appropriate, to attend and complete the community based SAFE child sex offender programme to the satisfaction of the programme provider and the Probation Officer.
(7) To seek approval from your Probation Officer prior to commencing any employment, vocational training or voluntary work.
(8) To seek approval from your Probation Officer prior to joining or attending any church groups, clubs or sporting clubs, or any community based organisation.
(9) To immediately disclose to your Probation Officer of any relationship that you enter into with any female aged 16 years and over.
(10) At the request of a Probation Officer you are to provide immediate access to any internet capable device that is deemed to be in your possession.
(11) Not to be away from your approved address between the hours of
10 pm and 6 am daily unless you have the prior written approval of a
Probation Officer.
(12) Not to enter or loiter near schools, kindergartens, parks, swimming pools, recreations areas and other places where children under the age of 16 are congregating, unless you have the prior written consent of your Probation Officer.
(13) Undertake an assessment for an appropriate alcohol and drug treatment programme. Attend and complete any counselling or programme as recommended by the assessment.
(14) To submit to electronic monitoring in the form of Global Positioning System (GPS) technology as directed by a Probation Officer in order to monitor your compliance with any conditions relating to your whereabouts.
(15) 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.
(16) To abide by the residency agreement of Spring Hill Village accommodation.
[28] By a fine margin I am persuaded that an intensive monitoring condition is necessary for the protection of the public. My reasons are that Mr J is able to be absent from the approved address other than between 10 pm and 6 am. When he is away from the address, although his whereabouts will be known because of the electronic monitoring, what he is doing and who he is with, will not be known. I consider that even had the new conditions imposed by the Parole Board on 12 May
2017 been in place at the relevant time, they would not have prevented the most recent offending. Mr J met the victim of that offending out in the community.
Result
[29] I make an ISO against Mr J pursuant to s 107FA of the Parole Act in the following terms:
Until the Chief Executive’s application for an ESO is finally determined,
Mr J is subject to the following supervision condition:
Mr J is to be subject to an intensive monitoring condition (to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the Chief Executive, to undertake person-to-person monitoring) for the time of this order until the application for an extended supervision order with intensive monitoring condition in this proceeding is finally determined.
But in any event this condition shall be for a period of no longer than
12 months.
[30] I also impose a condition of bail that Mr J must comply with the conditions of this ISO.
[31] Although Mr J was served with a copy of the application for an ISO, he has not had the benefit of legal representation today.
[32] Leave is accordingly reserved to Mr J to apply on two day’s notice for
variation of the ISO made herein.
[33] The application for the ESO is to be called in the callover list at 9 am on
7 June 2017.
Gordon J
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