Chief Executive of the Department of Corrections v Douglas
[2023] NZHC 1085
•8 May 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-585
[2023] NZHC 1085
UNDER the Public Safety (Public Protection Orders) Act 2014 IN THE MATTER OF
an application for a five year review of a Public Protection Order
BETWEEN
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant
AND
GLEN ANTHONY DOUGLAS
Respondent
Hearing: 2 and 3 August 2022 (final submissions received 14 October
2022)
Appearances:
C J Boshier for Applicant A J Bailey for Respondent
Judgment:
8 May 2023
JUDGMENT OF MANDER J
This judgment was delivered by me on 8 May 2023 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v DOUGLAS [2023] NZHC 1085 [8 May 2023]
Table of Contents
Background........................................................................................................... [2]
Criminal offending[3]
Procedural history[6]
The statutory framework....................................................................................... [9]
Timeframe for the filing of the review application.............................................. [15]
Recent jurisprudence............................................................................................ [19]
Review of public protection order....................................................................... [25]
The nature of the review[26]
Issues to be addressed[30]
The characteristics of the severe disturbance in behavioural functioning [32]
Section 13(2)(a) — an intense drive or urge to commit a particular form
of offending[38]
Section 13(2)(b) — limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with or
manage stress and difficulties[41]
Section 13(2)(d) — poor interpersonal relationships or social isolation
or both[46]
Section 13(2)(c) — absence of understanding or concern for the impact
of Mr Douglas’ offending on actual or potential victims..................................... [51]
The evidence[53]
The original determination of this characteristic[63] Analysis of the required characteristic.......................................................................................... [68]
The test for an absence of understanding or concern[69]
An unreliable indicator of recidivism[80]
Evidential insufficiency[83]
The potential effect of the Chisnall NZBORA decision[102] Is Mr Douglas at very high risk of imminent serious sexual offending?.................................. [106]
The evidence of a very high risk of imminent serious sexual offending [109]
The issues raised by Mr Douglas in opposition................................................. [123]
The risk of imminent serious sexual offending[123]
Risk assessment tools[129]
Two year gap in offending[140]
Conclusion regarding whether there still is a very high risk of imminent
serious sexual offending.................................................................................... [145]
Result of review................................................................................................. [154]
Review of management plan............................................................................. [155]
[1] Glen Douglas has been the subject of a public protection order (PPO) since 10 January 2017.1 In accordance with the statutory obligation imposed on him under the Public Safety (Public Protection Orders) Act 2014 (the Act), the Chief Executive of the Department of Corrections (the Chief Executive) has applied for a review of the continuing justification of the PPO.2 The Chief Executive seeks a continuation of the PPO on the basis Mr Douglas continues to present a very high risk of imminent serious sexual offending. Mr Douglas opposes the application and maintains the statutory threshold for such an order cannot be met.
Background
[2] Mr Douglas is a 31-year-old man who has been diagnosed with autism spectrum disorder (ASD) and a level of intellectual impairment. Since childhood, he has demonstrated a propensity for initiating inappropriate sexual contact with other young people and has a long history of problematic sexual behaviour. Between 1995 and 2000, concerns were raised about his conduct by professionals from Child and Adolescent Mental Health Services. As a 10-year-old, he was placed in the care of Mt Cargill Trust (Mt Cargill), which provides a residential disability support service for male children and adolescents. However, Mr Douglas continued to display what has been described as an extensive pattern of premediated and predatory sexual behaviour towards other boys, despite supervision and having a teacher’s aide with him at all times. It was while at Mt Cargill that Mr Douglas used lapses in supervision to make sexual contact with the victim of his 2006 offending, whom he repeatedly requested to engage in penetrative sexual activity until the victim acquiesced.
Criminal offending
[3] Mr Douglas’ involvement with this victim resulted in him being convicted of two charges of sexual connection with a young person aged between 12 and 16 years. He was sentenced to intensive supervision. In 2009, he breached the conditions of that sentence. At that time, he was living in Davin Healthcare accommodation under
1 Chief Executive of the Department of Corrections v Douglas [2016] NZHC 3184.
2 Public Safety (Public Protection Orders) Act 2014, s 16(1)(a).
intensive 24-hour supervision. He attended the STOP programme but made no progress and accessed pornography when the opportunity arose. It is recorded that, in June 2011, he contacted an associate and requested he bring him child pornography in exchange for sexual contact. He was evicted from Davin Healthcare and returned to his mother’s house.
[4] In December 2011, he was convicted on a charge of common assault that occurred at a public swimming pool. This was reported to have been committed in circumstances that indicated a sexual motivation. He was fined. In mid-2013, at the age of 22, he made contact with a 13-year-old boy, using false details. He began sexual offending against the boy in a manner that included oral sex and anal intercourse. This resulted in two further convictions for sexual connection with a young person aged between 12 and 16 years. Shortly thereafter, he was also convicted on 11 charges of possessing an objectionable publication. He was sentenced to three years’ imprisonment for the offending against the 13-year-old boy.
[5] When delivering the sentence, the Court observed that Mr Douglas’ sexually inappropriate behaviour and “oppositional and deviant responses to the imposition of authority” had been evident from a very young age.3 He was considered to present a high risk of further sexual offending and it was considered likely that Mr Douglas would target the same age and sex (male) as he had for the offending for which he was sentenced. He was described as having very high levels of sexual preoccupation and a propensity to involve himself with young people for sexual purposes, with an impoverished understanding of the likely negative impacts of any future offending.4 Mr Douglas’ determination to get to his victim, the breach of trust involved and his level of deception were noted.5
Procedural history
[6] Upon Mr Douglas’ release from prison, he was made subject to an interim detention order pending the determination of the Chief Executive’s application for a PPO — the first under the Act. The issue before the Court at that time, was whether
3 Chief Executive of the Department of Corrections v Douglas, above n 1, at [31].
4 At [32].
5 At [33].
the statutory threshold for the making of a PPO had been met and whether an extended supervision order (ESO) with intensive monitoring would provide the public with sufficient protection. After holding the statutory criteria to make a PPO had been met, Davidson J concluded that while there was a “well made case for the less restrictive ESO regime ... the need for protection of potential victims must come first” and a PPO was imposed.6 In reaching that conclusion, the Judge remarked on how the Act provided a legislative path that provided a “constant process of review” regarding whether the PPO would remain justified.7
[7] The Act requires that during the currency of a PPO, a review panel must annually review the continuing justification of the order.8 Should the review panel consider there may no longer be a very high risk of imminent serious sexual offending by the person subject to the PPO, it may direct the Chief Executive to apply to the Court for a review of the order.9 Successive reviews of Mr Douglas’ PPO have been undertaken by a review panel informed by reports prepared by health assessors, psychologists, residence managers and other persons who have been involved with Mr Douglas over the period of the PPO.
[8] In accordance with the requirements of the Act, this material was provided to the Court for the purposes of this review, together with reports prepared by two health assessors, clinical psychologists Dr Christine Ketchmark and Ms Dianne Farrell. They, together with Ms Melissa Brussovs, the residence manager at Matawhāiti where Mr Douglas is detained, and his treating psychologist, Ms Amanda Richards, gave oral evidence at the review hearing. A report prepared on behalf of Mr Douglas by a forensic psychiatrist, Dr Justin Barry-Walsh, was also tendered as evidence.
The statutory framework
[9] The objectives of the Act and the principles to which regard must be had when exercising any statutory power are as follows:
6 At [153].
7 At [152] and [153].
8 Public Safety (Public Protection Orders) Act, s 15(1).
9 Section 15(2).
4Objective of Act
(1)The objective of this Act is to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences.
(2)It is not an objective of this Act to punish persons against whom orders are made under this Act.
5Principles
Every person or court exercising a power under this Act must have regard to the following principles:
(a)orders under this Act are not imposed to punish persons and the previous commission of an offence is only 1 of several factors that are relevant to assessing whether there is a very high risk of imminent serious sexual or violent offending by a person:
(b)a public protection order should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order:
(c)a public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:
(d)persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.
[10] During the currency of a PPO, the Chief Executive must apply to the Court for a review of the continuing justification of the order “within five years after the order is made”.10 That review is governed by s 18 of the Act, which provides:
18 Review of public protection order
(1)On a review of a public protection order, the court must be provided with all reports provided to the review panel and may call for any further or supplementary reports from any person, including, without limitation, from—
(a)the chief executive:
(b)if the person subject to the order is required to stay in a residence, the manager of the residence:
10 Section 16(1)(a).
(c)if the person subject to the order is detained in a prison, the manager of the prison:
(d)any health assessor.
(2)The court must consider whether there still is a very high risk of imminent serious sexual or violent offending by the person subject to the public protection order.
(3)In its consideration under subsection (2), the court must take into account whether the reports provided to the court indicate that the person continues to exhibit a severe disturbance in behavioural functioning of the kind described in section 13(2).
(4)If, following its consideration under subsection (2), the court is satisfied, on the balance of probabilities, that there no longer is a very high risk of imminent serious sexual or violent offending by the person subject to the public protection order, the court must make a finding to that effect.
(5)The chief executive must advise every victim of the person subject to the public protection order of the outcome of the review.
(emphasis added)
[11] It follows from s 18(2) and (3) that the Court must consider whether Mr Douglas still presents a very high risk of imminent serious sexual offending.11 In doing so it must take into account whether the reports provided to the Court indicate he continues to exhibit a severe disturbance in behavioural function of the kind described in s 13(2) of the Act. If the Court is satisfied, on the balance of probabilities, there no longer is a very high risk of imminent serious sexual offending it must make such a finding.12
[12] Section 13 prescribes the mandatory criteria for the making of a PPO and the characteristics of the severe disturbance in behavioural functioning. It provides:
13 Court may make public protection order
(1)After considering all of the evidence offered in a proceeding on an application for a public protection order, and, in particular, the evidence given by 2 or more health assessors, including at least 1 registered psychologist, the court may make a public protection order against the respondent if the court is satisfied, on the balance of probabilities, that—
11 Serious sexual offending means the commission of one or more serious sexual offences which in turn is defined as a sexual crime, under Pt 7 of the Crimes Act 1961, punishable by seven or more years’ imprisonment, including a crime under s 144A or 144C of that Act.
12 Public Safety (Public Protection Orders) Act, s 18(4).
(a)the respondent meets the threshold for a public protection order; and
(b)there is a very high risk of imminent serious sexual or violent offending by the respondent if,—
(i)where the respondent is detained in a prison, the respondent is released from prison into the community; or
(ii)in any other case, the respondent is left unsupervised.
(2)The court may not make a finding of the kind described in subsection (1)(b) unless satisfied that the respondent exhibits a severe disturbance in behavioural functioning established by evidence to a high level of each of the following characteristics:
(a)an intense drive or urge to commit a particular form of offending:
(b)limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties:
(c)absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims (within the general sense of that term and not merely as defined in section 3):
(d)poor interpersonal relationships or social isolation or both.
[13] The term “imminent”, as used in both sections 13 and 18, is defined in the Act:13
imminent, in relation to the commission of serious sexual or violent offences by a person, means that the person is expected to commit such an offence as soon as he or she has a suitable opportunity to do so.
[14] The review can only result in a binary outcome. Should the Court be satisfied, on the balance of probabilities, there no longer is a very high risk of imminent serious sexual offending, the Court must cancel the PPO and impose a protective supervision order (PSO).14 Where such a finding is not made, the PPO remains in place, although the Court must review Mr Douglas’ management plan to ascertain whether it continues to be appropriate and make any recommendations to the manager of the residence where he is required to stay.15
13 Section 3.
14 Section 93(1).
15 Section 19.
Timeframe for the filing of the review application
[15] As a preliminary point, Mr Bailey, who represented Mr Douglas, observed what he considered was non-compliance by the Chief Executive with filing his review application within the appropriate timeframe. Section 16 of the Act relevantly provides:
16 Application by chief executive for review of public protection order
(1)During the currency of a public protection order, the chief executive must apply to the court for a review of the continuing justification of the order—
(a)within 5 years after the order is made; and
...
[16] It was submitted the PPO was made on 21 December 2016, the date of Davidson J's judgment granting the Chief Executive’s application. It followed, on Mr Bailey’s argument, that to comply with s 16(1)(a), the review application had to be made prior to 21 December 2021. It was observed that the Chief Executive’s application was not filed until the day after that date.
[17] However, Ms Boshier, on behalf of the Chief Executive, noted that Mr Douglas had remained detained pursuant to an interim detention order until 10 January 2017, being the date Davidson J ordered the PPO to come into force. It was her submission that the order was not “made” until 10 January 2017 when it replaced the interim detention order. Ms Boshier argued that, while a decision had been made that would require Mr Douglas to be the subject of a PPO, in his case that order was not actually made until it came into force during the following month. In support of the Chief Executive’s position, it was noted that s 107 of the Act provides the Court with the power to detain a person on an interim basis, pending the determination of the PPO application. Section 107(4) provides that an interim detention order ceases to have effect when the application for a PPO is finally determined. Ms Boshier submitted that this is when the PPO replaces the interim detention order, which is what occurred in this case, or the application is otherwise discontinued.
[18] I consider little turns on this point. Mr Bailey himself expressly did not seek to impede the review on this technical point. I note he reserved his position on the matter, but did not advance it either at the hearing or in subsequent submissions. Notwithstanding that being the case, I do not consider the argument has merit. Section 16(1) requires the Chief Executive to apply to the Court for a review of the continuing justification of a PPO “[d]uring the currency” of the order — within five years after the order is made. I do not consider Parliament intended to differentiate between the five-year length of a PPO and the requirement that a review application be made while the PPO remained extant. In the present circumstances, where the start of the PPO is delayed, the five years runs from when it becomes operative. The order should be viewed as having been made on that date. That interpretation appears consistent with the intention of s 16 and the wider scheme of the Act.
Recent jurisprudence
[19] Before addressing the particular issues to which this review gives rise, it is necessary to address the approach to be taken to the interpretation and application of the Act in the wake of the recent decision of the Court of Appeal in Chisnall v Attorney- General.16 A full bench of that Court found the statutory regimes that provide for the making of extended supervision orders (ESOs)17 and PPOs18 to be inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990 (NZBORA), which prohibits a person who has been finally acquitted, convicted of or pardoned for an offence from being tried or punished for it again.19
[20] The Court determined that because the restrictions that flow from ESOs and PPOs are potentially very severe and amount to punishment, in the absence of trial and conviction for a further offence, they constitute a marked departure from the legal order reflected in s 26(2) NZBORA.20 Notwithstanding that such measures may be able to be applied in an individual case in a rights compliant way, it was held that neither the Parole Act or the Public Safety (Public Protection) Act delineated regimes
16 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484.
17 Public Safety (Public Protection Orders) Act.
18 Parole Act 2002.
19 Leave to appeal to the Supreme Court has been granted, see Attorney-General v Chisnall [2022] NZSC 77.
20 Chisnall v Attorney-General, above n 16, at [218].
that limited rights in a way, and to an extent that were shown to be demonstrably justified in a free and democratic society.21
[21] In light of the declarations of inconsistency made by the Court of Appeal in that case in respect of the PPO and ESO regimes, consideration has since been given to the need to recalibrate the approach to the respective statutory tests for such orders and the way the discretion to grant them should be exercised.22 The full Court, in Chisnall, did not accept the limit on the right to be immune from a second penalty could be demonstrably justified simply because ESOs and PPOs would be subject to a full assessment by judicial officers in the individual case. However, the Court did not exclude the possibility that the legislation could be applied in a rights compliant way, nor that the right to be free from second punishment was of a non-derogable nature that could never be subject to reasonable limits.23 However, the Court determined that any departure from a right of such clear fundamental importance would require “strong justification”.24
[22] This approach was re-affirmed by the Court of Appeal in R (CA586/2021) v Chief Executive of the Department of Corrections, when the Court, in light of Chisnall, made the following observations regarding the discretion to renew an ESO:25
[53] We accept the submission of R that consequent upon Chisnall, the continuation of the ESO needs to be clearly justified. Whilst that has always been the case, the declarations of inconsistency made by the Court emphasise the need for careful scrutiny. In this regard we note Chisnall holds that s 26(2) of the NZBORA (the second penalty provision) is capable of being subject to a reasonable limit. “Strong justification” will, however, be required, and that accordingly is the lens through which we assess whether the Judge erred in confirming the order.26
[23] Most recently, the Court of Appeal has re-addressed Mr Chisnall’s case in the context of an appeal against the imposition of a PPO.27 In response to a submission
21 At [218]–[220].
22 Department of Corrections v Gray [2021] NZHC 3558 at [22]–[23]; and Miller v Department of Corrections [2022] NZHC 1342 at [15].
23 Chisnall v Attorney-General, above n 16, at [189].
24 At [190].
25 R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 (footnotes omitted); see also Department of Corrections v Gray, above n 22.
26 The same approach was adopted in Wilson v Chief Executive of the Department of Corrections
[2022] NZCA 289 at [17]–[20].
27 Chisnall v Chief Executive of the Department of Corrections [2022] NZCA 402.
by Mr Chisnall that the “rights” implications of the declarations of inconsistency made by that Court called for a new approach, the Court of Appeal held that its task was to consider the appeal “on the terms of the legislation as it stands”.28 However, the Court added the rider that the legislation is to be given as rights-compliant an interpretation and application “as within its terms are available”.29
[24] It follows that the statutory requirements of a PPO, including the assessment of the very high risk of imminent serious sexual offending is to be approached, so far as it is reasonably available, in a rights-consistent manner, and in a way that reflects the need for strong justification if there is to be a legitimate departure from the right to be immune from a second penalty. Only by that means can the imposition or continuation of such orders potentially qualify as a demonstrably justified limitation on the right.30
Review of public protection order
[25] Before addressing the essential matters required to determine whether there is still a very high risk of imminent serious sexual offending by Mr Douglas, I canvas a number of issues that were raised regarding the way the Court is required to approach the review.
The nature of the review
[26] In accordance with the requirements of the Act, the continuing justification of the PPO has been the subject of an annual review by a panel charged with examining whether Mr Douglas may no longer present a very high risk of imminent sexual offending. 31 In light of that process and the fact Mr Douglas presently remains subject to a PPO, there was some disagreement between the parties regarding the way the Court should approach the review exercise, although I consider those differences were more apparent than real.
28 At [22].
29 At [22].
30 Department of Corrections v Bell [2022] NZHC 2453 at [10].
31 Public Safety (Public Protection Orders) Act, s 15.
[27] Ms Boshier, on behalf of the Chief Executive, submitted the review required by s 18 of the Act does not involve a “re-litigation” of the PPO and that as matters presently stand, in the absence of the review panel having found that there may no longer be a very high risk of imminent serious sexual offending, the Court’s focus must be on whether there is evidence of a change in Mr Douglas’ presentation such that he no longer meets the criteria for a PPO. There is support for that approach from the requirement that the Court must be provided with all reports provided to the review panel and, moreover, the statutory language which directs the Court to consider whether there still is a very high risk of imminent serious sexual offending, and whether Mr Douglas continues to exhibit a severe disturbance in behavioural functioning.32 The ultimate finding the Court must make is whether there is no longer a very high risk of imminent serious sexual offending.33
[28] Mr Bailey essentially acknowledged that, because Davidson J’s 2016 decision granting the PPO remains undisturbed and Mr Douglas continues to be subject to that order, he is currently deemed to still be at very high risk of imminent offending. However, Mr Bailey submitted the Act required this Court on a five-year review to undertake a fresh assessment and to reach its own conclusions, uninfluenced by previous decisions of this Court or the review panel’s findings over the intervening years. I did not understand Ms Boshier to be arguing to the contrary.
[29] The five-year review I am required to undertake requires me to reassess the statutory criteria for a PPO in order to determine whether Mr Douglas still meets the criteria for such an order. In doing so, I am required to come to my own conclusions as to whether Mr Douglas meets the statutory test. I may have regard to the material that has previously been made available to the review panel but my task is to conduct a new assessment, independent of previous findings of the review panel or views expressed by this Court in earlier decisions, and to do so in accordance with the Court of Appeal’s current guidance as to the way the legislation is to be approached.
32 Section 18(2) and (3).
33 Section 18(4).
Issues to be addressed
[30] Mr Douglas’ opposition to a finding that he remains at very high risk of imminent serious sexual offending is advanced on two bases:
(a)He does not have, to a high level, an “absence of understanding or concern for the impact of [his] offending on actual or potential victims”, being a requisite characteristic of a person exhibiting a severe disturbance in behavioural functioning; and
(b)He does not, in any event, present a very high risk of imminent serious sexual offending if he was to be released unsupervised.
[31] In identifying these grounds of opposition to the continuation of the PPO, Mr Bailey submitted Mr Douglas’ position should not necessarily be construed as an acceptance that he still exhibits to a high level all the other necessary characteristics of a severe disturbance in behavioural function described in s 13(2). However, these were not the subject of any specific challenge, nor was there any suggestion these characteristics do not continue to endure. Notwithstanding that being the position, in order to assess whether there still is a very high risk of imminent serious sexual offending, I must be satisfied there is evidence to a high level of each of the three other characteristics,34 in addition to the particular requisite trait which was the focus of Mr Douglas’ opposition.35 It is to those matters I now turn.
The characteristics of the severe disturbance in behavioural functioning
[32] The characteristics set out in s 13(2) are necessary but not automatically sufficient requirements for a court to be satisfied there is a very high risk of imminent serious sexual offending if the person is left unsupervised.36 They are required to be established to the court’s satisfaction by evidence to a “high level”. These characteristics are:37
34 Section 13(2)(a), (b) and (d).
35 Section 13(2)(c).
36 Chisnall v Chief Executive of Department of Corrections, above n 27, at [25].
37 Public Safety (Public Protection Orders) Act, s 13(2).
(a)an intense drive or urge to commit a particular form of offending;
(b)limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties;
(c)absence of understanding or concern for the impact of the person’s offending on actual or potential victims (within the general sense of that term, and not merely as defined in s 3);
(d)poor interpersonal relationships or social isolation or both.
[33] In Chief Executive, Department of Corrections v Alinizi, the Court of Appeal held that the word “exhibits” in s 13(2) does not require those traits or behavioural characteristics to be externally manifested at the time of the application.38 The person need not presently display the characteristics, and it is sufficient they may be latent and emerge only in certain contexts.39 As in the circumstances of the present case, the person may already be subject to the supervision of an ESO or have been subject to the constraints of a PPO for some period of time. In such a situation, there may have been limited scope for the person to display certain traits in the absence of an opportunity to offend. Whether those characteristics are present where the person is already subject to an order that limits the potential to offend, the focus will necessarily be on the risk assessments undertaken by the health assessors and the person’s conduct while subject to the order.40
[34] As noted, the characteristics listed in s 13(2) which inform whether a person exhibits a severe disturbance in behavioural function are required to be “established by evidence to a high level”.41 There is some ambiguity as to whether the qualifier “to a high level” attaches to the intensity of the required characteristic or to the standard of the evidence required to establish that trait. However, as observed by Venning J in
38 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [26]–[28].
39 Chief Executive of the Department of Corrections v Douglas, above n 1, at [86].
40 Chief Executive of the Department of Corrections v McIntosh [2020] NZHC 3184 at [29], which involved a respondent who had spent 15 years on an ESO.
41 Public Safety (Public Protection Orders) Act, s 13(2).
Chief Executive of the Department of Corrections v W, the same outcome likely results:42
[27] Although the wording of s 13(2) is somewhat awkward, I interpret it to mean that the Court must be satisfied on the evidence before it that Mr W exhibits, in other words has, as part of his personality, each of the four characteristics described; and also in each case, that he has them to a high level. The alternative interpretation of the section is that it requires a high level of evidence of each characteristic (without reference to the strength of the characteristic). But even on that interpretation the level of evidence would, in reality, need to be such that each characteristic was established to a high level in any case.
[35] I proceed on the basis that each of the four statutory characteristics must be present to a high level in order to qualify as preconditions to meet the risk threshold of there being a very high risk of imminent serious sexual offending should Mr Douglas be left unsupervised.43
[36] At the hearing of the original PPO application, there was a general concurrence in the expert evidence, including that called by Mr Douglas from Dr Barry-Walsh, that the criteria described in s 13(2)(a), (b) and (d) had been satisfied by evidence to a high level. Reservations were expressed by Dr Barry-Walsh regarding whether s 13(2)(c)
— absence of understanding or concern for the impact of Mr Douglas’ offending on actual or potential victims — met the statutory test. Dr Barry-Walsh opined that if “absence” in section 13(2)(c) meant “completely without”, then the test was not met as Mr Douglas did have some understanding and concerns about the impact of his offending on his victims. Essentially, the same controversy arises on the five year review.
[37] While I accept the Court is required on the review application to satisfy itself that Mr Douglas continues to exhibit a severe disturbance in behavioural functioning of the kind described in s 13(2), and, as noted, Mr Douglas made no concession regarding those necessary prerequisites, it was not suggested the characteristics described in s 13(2)(a), (b) and (d) were not present to the necessary high level. Notably, Dr Barry-Walsh’s views did not materially differ from those he expressed at
42 Chief Executive of the Department of Corrections v W [2016] NZHC 1081 at [27].
43 See Chief Executive of the Department of Corrections v Chisnall [2021] NZHC 32 at [145]; Chief Executive of Department of Corrections v Douglas, above n 1, at [97]–[98];
the time Davidson J found these particular features present to a high level when determining the Chief Executive’s original application for a PPO. Nevertheless, I address each in turn.
Section 13(2)(a) — an intense drive or urge to commit a particular form of offending
[38] The first of the health assessors, Ms Farrell, observed that since childhood, Mr Douglas has demonstrated an intense drive to sexually offend against children and adolescents. Mr Douglas informed her that he continues to experience deviant sexual interests and arousal and retains a sexual interest in boys. He described masturbating to sexual fantasies about male children once or twice per week or month. Ms Farrell concludes that Mr Douglas has a pervasive sexual preference for children, noting that some of his offending has occurred when he had access to adult sexual partners, and that he continues to sexually fantasise about children, even when he has adult alternatives.
[39] Mr Douglas expressed to the other health assessor called by the Chief Executive, Dr Ketchmark, a sexual preference for nine to 13-year-old males, and is described by her as being sexually preoccupied. While Mr Douglas claims his deviant sexual thoughts and behaviour have decreased, his progress with treatment is described as poor and he is not considered able to self-manage his continued deviant sexual interest in underage males. While in his current setting, Mr Douglas has no real opportunity to engage in age-appropriate sexual relationships and has not himself reported an intense drive or urge to commit a further sexual offence, when interviewed by Dr Ketchmark, he accepted he would need external controls to manage his risk of reoffending. Mr Douglas is noted to have taken opportunities in the past to offend in a way that carries risks of detection, which is consistent with an intense drive or urge, and has a tendency to become fixated on sexual activity. He is said to be unable to regulate his sexual impulses. It is apparent that Mr Douglas remains highly sexualised and continues to view children as part of his sexual fantasies.
[40] There is little to suggest that Mr Douglas’ ingrained intense drive or urge to sexually offend against children has materially reduced. As acknowledged by Dr Barry-Walsh, it is difficult to place much weight on any contrary claims by
Mr Douglas given the available evidence that his drive to further offend does remain and is acknowledged to be sufficiently concerning. I am therefore satisfied on the evidence that Mr Douglas continues to exhibit to a high level an intense drive or urge to sexually offend against children, particularly young males. There is nothing to indicate this trait no longer subsists.44
Section 13(2)(b) — limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with or manage stress and difficulties
[41] Mr Douglas has described himself as having difficulty with self-regulation. He refers to having “a tendency of wanting all the time” and being driven by a need for pleasure. When asked what kind of support he needs to prevent reoffending, Mr Douglas stated “24/7 supervision”. He has limited internal capacity to manage his risk at this time without significant external control. Mr Douglas is also assessed by others as having difficulty with self-regulation, spending his money impulsively, and having difficulty regulating himself around food. He has a history of easily becoming upset and emotionally dysregulated, with his responses sometimes disproportionate to the perceived triggering event.
[42] Dr Ketchmark notes that Mr Douglas has difficulties with his capacity to self- regulate and manage his impulsivity, which may in part reflect his ASD diagnosis. In regard to sexual self-regulation, he reported to her that he masturbates to both deviant and non-deviant images when he feels “sexually excited” or as a coping mechanism to help him manage his emotions, and that his ability to self-regulate continues to be an area of difficulty for him.
[43] Mr Douglas has been assessed in the past as being impulsive. His behaviours and decision-making are said to reflect his poor self-control, his tendency to externalise responsibility to others to manage situations and problem solve for him, and that he uses sexual activity to regulate his emotions. His inability to self-regulate sexual impulses was said to be reflected in his history of repeated sexual activity with others, his offending, pornography use and masturbation. There has been no discernible change. As summarised by Ms Farrell:
44 Taakimoeaka v Chief Executive of the Department of Corrections [2021] NZCA 467 at [32].
Since childhood, Mr Douglas has had difficulties regulating his behaviour and remains impulsive and unable to manage his life independently, much less cope with managing situations he finds challenging or stressful He lacks
cognitive problem-solving skills and relies on external measures to regulate his life. It is the writer’s opinion that Mr Douglas demonstrates a limited self- regulatory capacity both general and sexual.
[44] Both Ms Farrell and Dr Ketchmark confirmed in their oral evidence that this characteristic of limited self-regulatory capacity, impulsiveness and high emotional reactivity is present in Mr Douglas to a high level. While Dr Barry-Walsh considered there was some evidence of improvement in this area, he accepted that Mr Douglas’ documented behaviour in Matawhāiti and the structures required to be put around him to assist his self-regulation indicates persisting impulsivity which, while presently managed, remains present. He opines that there is a likely link with his ASD.
[45] I conclude there has been no material change in the presence of this characteristic which remains to a high level part of Mr Douglas’ makeup.
Section 13(2)(d) — poor interpersonal relationships or social isolation or both
[46] In 2016, Davidson J cited two passages from the respective reports of two psychologists who gave evidence in support of the Chief Executive’s application for a PPO that addressed Mr Douglas’ poor interpersonal relationships or social isolation. The current information confirms that the health assessors’ observations remain apposite:45
[54]Ms Walker says:
Mr Douglas has a history of engaging in multiple indiscriminate sexual encounters that appear to lack emotional connectedness or meaningfulness. He has had no long-term intimate relationships. Over the course of his lifetime he has had few friendships. Mr Douglas appears to desire interpersonal connection and attachment, but reports a pervasive sense of loneliness and fear of rejection from others. Review of collateral information suggests that Mr Douglas has had few meaningful, appropriate, and prosocial relationships (intimate and non-intimate) over his lifetime. Many of his relationships have been with staff who have been paid to support him, and he has been noted to develop a dependence on professionals who have worked with him. Mr Douglas is noted to present with poorly developed social awareness and skills to initiate and maintain appropriate and meaningful relationships (this is considered consistent with his diagnosed ASD). Of further concern is that Mr Douglas committed the index offending while he was engaged in a relationship with a similarly-aged adult, suggesting that the
45 Chief Executive of the Department of Corrections v Douglas, above n 1.
presence of an appropriate adult relationship is not a protective factor for him.
[55]Mr Todd-Downing says:
Mr Douglas' diagnosis of Autistic Spectrum Disorder means that he has difficulty understanding the reciprocal nature of relationships; his insight into relationships being very poor. He was reported as having no understanding of his role in relationships and was said to have discussed his friendships only in terms of what he gained from them and not what he contributed.
File and interview information shows that Mr Douglas has had very few friends over the course of his life. His sexualised and offending behaviour appears to have provided him with unhealthy and inappropriate opportunities for intimacy and connectedness. He has not had a long-term intimate relationship but did say he had a partner at the time of his index offences. However, he said this relationship was not meeting his needs and, in the writer's opinion, was not protective for him.
In terms of current relationships, Mr Douglas was described by his Case Officer as reasonably sociable. However, he was also described as very immature in behaviour and attitude, ‘child-like’ and vulnerable, making it difficult for him to develop relationships with age-appropriate adults. Mr Douglas was said to gravitate towards the younger and more vulnerable prisoners on the unit.
It is concerning that Mr Douglas' sexual risk may in part be formed by his capacity to more easily relate to younger and vulnerable people and by his lack of relational skills and emotional congruity with age-appropriate adults.
[47] There can be no real dispute that Mr Douglas continues to exhibit this trait of poor interpersonal relationships or social isolation to a high level, if only as a result of his current situation. There has been the development of a source of support for him in the form of his sister, but both his ASD and placement within Matawhāiti constrains the development of normal or ordinary interpersonal relationships with others. As opined by Ms Farrell, Mr Douglas continues to lack the capacity for meaningful, appropriate pro-social relationships, with his only enduring personal relationships being primarily with family members, and in particular his sister. He continues to erroneously sexualise interactions with others and is described as being unable to engage “in the give and take” of social relationships, responding excessively to perceived slights or perceptions of unfairness. Ms Farrell concluded that it is likely Mr Douglas would be socially isolated if he was not a resident at Matawhāiti.
[48] Dr Ketchmark notes the limited opportunities Mr Douglas has had to develop meaningful and appropriate pro-social relationships, either of an intimate or non- intimate kind, other than with professionals or close family. Accordingly, he is relatively isolated, there being few other residents at Matawhāiti. His ASD impacts
on his social skills and obviously on his ability to establish relationships with others, he having little insight or understanding of the reciprocal nature of relationships. Over the course of his lifetime, Mr Douglas has had few friendships.
[49] Dr Barry-Walsh noted the one positive was evidence of support from Mr Douglas’ family but that Mr Douglas’ capacity to develop stable and healthy relationships is limited by both his ASD and his placement within the Matawhāiti Unit. Because of these constraints, it is observed that it is an area that requires further focus in his ongoing management and treatment.
[50] The evidence establishes that this characteristic of poor interpersonal relationships and social isolation remains present to a high level.
Section 13(2)(c) — absence of understanding or concern for the impact of Mr Douglas’ offending on actual or potential victims
[51] The severe disturbance in behavioural functioning that Mr Douglas must continue to exhibit to remain subject to the PPO must include an absence of understanding or concern for the impact of his offending on actual or potential victims.46 The Court must be satisfied that Mr Douglas continues to exhibit this particular characteristic and that it is present to a high level. Mr Douglas denies an absence of understanding or concern for the impact of his offending on the victims, or that this requisite deficiency can be established to the necessary high level.
[52] It is not disputed that Mr Douglas has expressed some level of understanding or concern regarding the impact of his offending on victims, but the Chief Executive maintains that Mr Douglas’ presentation has not materially changed since the PPO was made. It is his position that, as was the situation some five years ago, whatever understanding Mr Douglas may purport to exhibit, is not sufficiently meaningful to conclude he has anything other than an absence of understanding or concern for the impact of his offending on victims. Mr Douglas disputes the validity of this approach to whether he has this requisite characteristic, which was originally adopted and applied by Davidson J when making the PPO. He argues the presence of “some
46 Public Safety (Public Protection Orders) Act, s 13(2)(c).
understanding”, whatever its quality, precludes a finding that he possesses this trait, or at least that such a conclusion is available to the high level required by the statutory criteria.
The evidence
[53]When addressing this characteristic in her report, Ms Farrell opined:
Mr Douglas has generally been described as lacking understanding or concern about the impact of his offending on past or potential victims and this has remained consistent across settings. In the writer’s opinion he appears to lack understanding of others’ thoughts and feelings generally and is self-focussed. Initially Mr Douglas offered a range of cognitive distortions to justify or minimise his offending. Currently he speaks frankly about his offending without any sense of emotional connection to the events. This callous antisocial approach is consistent with psychopathetic traits.
[54]In her oral evidence, Ms Farrell enlarged on her opinion:
So in interviewing Mr Douglas he was able to describe in depth the offending that he had engaged in against his victims and he was able to speak about some of the harms that he believed had occurred as a result of his offending but in talking about those things, his emotional presentation didn’t change at all. So there was no evidence of an emotional understanding or connection with the harm that he had done to his victims, it was as if he was talking about any other thing. So in talking about his day to day activities, his level of emotional presentation was the same when he was talking about offending against his victims and that indicates that the emotional connection isn’t there and in terms of empathy, our thinking is that if a person is able to emotionally understand the impact of harm they have perpetrated on a person, and if they care about that, then that will deter them from offending in the future and as a result of Mr Douglas’s ASD he doesn’t appear to strongly have that capacity to make, to have the emotional component of empathy and understanding.
[55] Under cross-examination, Ms Farrell was asked about Mr Douglas’ intellectual understanding:
Q. The issue of understanding, you have talked about that in your report obviously but also today. You and a number of other psychologists or report writers have talked about intellectual understanding and I just want to tie down exactly what you mean by “intellectual”. So you do understand it just as like most people would understand if you keep going through red lights you might or might well have a crash and it might result in an injury. So when you say Mr Douglas has got an understanding about the effects of his offending it is analogist [sic] with my example there where he knows what could or probably will happen if he was to do A, B or C?
A. Yes.
[56] In response to a question as to whether Mr Douglas has an absence of understanding to a high level, Ms Farrell replied:
Yes. I believe that he has a superficial level of understanding that he can verbalise but that this does not, it doesn’t manifest emotionally for him. When we’re looking at behaviour we are looking to see an integration of cognitive and emotional and behavioural patterns so that they’re integrated, that is good, healthy functioning. So for Mr Douglas, he has — he can verbally report his concern but that is inconsistent with his emotional responses which he doesn’t have particularly, he sort of quite neutral about it, certainly doesn’t appear to be distressed by what has occurred and in fact focuses more on the impact on himself. And in terms of his behaviour, I would for example consider that we have an integration of cognitive, emotional and behavioural factors if Mr Douglas understood the harm that is done to children that are the victims of child sexually exploitative material. So if he cognitively and emotionally understood that and that impacted his behaviour not to continue to access the material because emotionally that would be difficult for him to do if he understood how much those children are negatively impacted.
[57] In summary, Ms Farrell’s evidence was that she thought Mr Douglas had a superficial understanding that he verbally expresses but this is not integrated with his emotional and behavioural functioning. While not directly addressed in her report, Ms Farrell stated in her oral evidence that she believed Mr Douglas’ absence of understanding or concern for the impact of his offending was present to a high level.
[58] Dr Ketchmark summarised her assessment of Mr Douglas in relation to this requisite characteristic in the following way:
Mr Douglas’ general capacity to empathise appears to be limited, and this is consistent with previous reports. In discussion of the impact of his offending on potential and actual victims he presents as having an intellectual and superficial understanding, with little emotional connection demonstrated. However, it is understood that this presentation may reflect an interaction between previously described personality features and his ASD diagnosis. It is the writer’s opinion that Mr Douglas appears to have a degree of understanding of the impact of his offending; however, the writer considers that this understanding is insufficient in and of itself to motivate him towards relevant behaviour change and desistance.
[59]In oral evidence, Dr Ketchmark expanded on these conclusions:
What I said was that his level of understanding did not appear to in and of itself motivate him towards relevant behaviour change and [desistance]. So what that means is can he sort of switch off his concern or understanding when he’s sexually pre-occupied and has deviant thoughts or in the course of his offending, you know, would that understanding protect him from offending, so would other factors override any concern he might have had, and so based
on my report and other information I have reviewed I don’t have a high level of confidence that his level of understanding would be protective under those conditions and then when I said that his understanding was limited what I meant was the depth of his understanding so I said in my assessment that he reported that he was still coming to terms with the effect of his offending on others, the impact of his offending. He did seem to have more of a surface level, intellectual understanding, again he lacked that emotional connection but I do attribute, at least some of that, to his ASD diagnosis. But perhaps more importantly those with a high level of understanding you would expect to see behaviours demonstrated that are aligned with that. So in his case and as suggested by his treating psychologist in her most recent report, he’s still engaging in deceitful and manipulative behaviours both inside and outside the treatment sessions as well as, in her affidavit, Ms Brussovs indicated that he has made some gains but that, for example, showing empathy among other issues remained a strong focus of their work with him and despite having strategies to manage his deviant arousal, he has still persisted in engaging in behaviours like deviant masturbation, like purchasing the DVD without approval that was deemed to be inappropriate, things like that ... so although he's expressed an understanding of the harm caused at the same time, you know, he can sometimes still be consciously sort of deceitful and manipulative and behaves in ways that he seems to know is wrong in order to get his sexual needs met.
[60] Dr Barry-Walsh, when addressing this issue in his report, was struck by the likely influence of ASD on Mr Douglas’ capacity to communicate understanding or concern. In his view, while presented in a sometimes naïve or intellectualised way, it was evident Mr Douglas “had some understanding of the harm broadly speaking, that sexual abuse including his offending, may cause”. Dr Barry-Walsh’s assessment largely reflected the views he expressed to the Court at the time of the Chief Executive’s original application for a PPO.
[61] In his earlier report, Dr Barry-Walsh remarked on how Mr Douglas appeared to parrot or apply rote what he had been told. He thought this may be attributable to Mr Douglas’ ASD and that an apparent intellectualised and rote account may in fact reflect some genuine, albeit intellectual, understanding. In the course of that hearing the Court asked Dr Barry-Walsh:
Q.So I just want to deal with 2(c) which is the absence of understanding or concern for the impact of the respondent’s offending on actual potential victims. Are you able to comment on whether in your opinion that’s absent understanding?
A. It’s not absent. There’s clearly some understanding there. It just highlights one of the problems with these kind of assessments. There’s a good degree of subjectivity in all this but he clearly described to me an understanding of the impact of his offending on
others. I noted that much of it there was a rote quality but that may reflect his problems in communication as a result of his autistic spectrum disorder. Further, he did show some emotional understanding at least in his conversation with me when he described the distress he experienced in writing an offender letter as part of the Kia Marama programme so I could find that there is evidence of some understanding of the impact of the offending. I agree with what’s been observed already that it doesn’t necessarily seem to translate much into substantial changes in behaviour but nevertheless I find it there ...
[62]Later, in his oral evidence at that hearing, Dr Barry-Walsh reiterated:
... Absence of understanding or concern. Well I find that he doesn’t have an absence of understanding or concern. So there is definitely some understanding or concern there. So I can’t say that he has that there to a high level. You might say there’s some impairment in that. You might want to see it expressed more consistently and with a greater degree of emotional conviction, but there’s definitely understanding there.
The original determination of this characteristic
[63] The controversy regarding whether Mr Douglas exhibits an absence of understanding or concern, and whether it is present to a high level, requires a reappraisal of the way the same issue was addressed by Davidson J when determining the original PPO application. The Chief Executive accepts the evidence discloses that some level of understanding has been exhibited by Mr Douglas. He argues, however, it is plain that what understanding or concern has been articulated is not of a type that can realistically mitigate the risk of reoffending which derives from such a characteristic. In the absence of any genuine or meaningful understanding or emotional concern that could potentially operate as a check on further offending, it is argued Mr Douglas fulfils the criterion of an absence of understanding or emotional concern and that it is present to a high level. Davidson J’s finding to this effect, it is submitted, remains correct in the absence of evidence that displaces this Court’s previous conclusion regarding this particular characteristic.
[64] Davidson J framed the issue for his consideration in relation to the presence of this characteristic in the following way:47
[81] I must decide whether what is on the evidence at best a very limited understanding on the part of Mr Douglas, nevertheless means that he has some understanding and concern, so that the s 13(2)(c) test is not met, or whether
47 Chief Executive of the Department of Corrections v Douglas, above n 1.
the true nature of Mr Douglas' understanding or concern meets the statutory test that there is an “absence” of understanding or concern, to a high level.
[65] In choosing the latter interpretation, Davidson J made a number of observations that are challenged by Mr Douglas as part of his opposition to the continuation of the PPO. The Judge rejected the suggestion that the expression in 13(2)(c), “absence of understanding or concern ...”, required there to be no understanding or concern. Davidson J reasoned as follows:
[82] ... it would be almost impossible to establish a “complete absence”. Someone may express intellectually an understanding, or concern, or as the evidence indicates, it might be parroted or rote. The expression “inability to cope with … ” in s 13(2)(b) must also have an element of relativity about it because otherwise the mere demonstration of some ability, even extremely limited in scope, would defeat the plain intent of the legislation...
[83] In my view the lack of, or deficit in understanding or concern must be at such a level as to fit the plain purpose of the Act in this respect, namely to identify whether the usual behavioural and psychological checks on a potential offender will not apply, because for example, there is no sufficient understanding or concern for the effect of the criminal act on a victim.
[84] Mr Douglas has some understanding of the impact of his offending on his victims, as Dr Barry-Walsh has observed. It is, however, quite possibly a rote expression, and ineffective as a check on his behaviour, which under impulse would not operate as any check at all. If someone can simply say they have a level of understanding or concern and thus negate s 13(1)(c), it is not really a test at all. Equally, if they have a scintilla of understanding, that in my view cannot be enough...
[89] In my view, an “absence of understanding or concern … ” means that any understanding or concern is so distorted, superficial and self orientated, that it marries with the clear purpose of the legislation, that the checks and balances inherent in the combined and individual characteristics in s 13(2) are not operative to negate the risks which derive from those characteristics.
[66] Davidson J, when examining this issue, noted the evidence provided by a departmental psychologist that Mr Douglas’ level of sexual arousal can consume him totally at times and that he does not think about the consequences of his actions for himself or other people, instead responding to those urges and his need for gratification. The Judge observed that Mr Douglas’ “urges and impulses marry with compulsivity to overcome the barriers in front of him”.48 After acknowledging this as
48 Chief Executive of the Department of Corrections v Douglas, above n 1, at [92].
being an important aspect of the evidence in relation to his assessment, the Judge concluded:49
[96] As to s 13(2)(c) factors, the evidence is conflicting and there are several reasons for that. I conclude that “absence of … ” is not an absolute measure. To prove an absolute at a high level is illogical. After consideration of all the health assessors' evidence, I am satisfied that the characteristics of s 13(2)(c) are established by evidence to a high level, and there is such a high level of deficit exhibited by Mr Douglas that any understanding or concern is inoperative as a check on his further offending. His understanding, even intellectually, is flawed. His behaviour does not demonstrate any meaningful understanding or concern, and I conclude that under impulse or urge, the understanding he evinces is of no influence on his conduct whatsoever. His impulse for sexual gratification directs his compulsive behaviour to achieve that outcome.
[67] Both health assessors, Ms Farrell and Dr Ketchmark, opined that Davidson J’s description of Mr Douglas’ deficit in possessing any meaningful understanding or concern remains accurate. They believe there has been no material change in the nature or level of Mr Douglas’s understanding or concern, at least in terms of managing his risk should he be left unsupervised and provided with the opportunity to reoffend. Whatever slight changes have occurred in respect of this characteristic, they were not considered significant enough to alter this deficit being present to a high level.
Analysis of the required characteristic
[68] Mr Bailey made a number of submissions as to why the Court could not be satisfied Mr Douglas has, to a high level, an absence of understanding or concern for the impact of his offending on actual or potential victims. These arguments ranged from a challenge to the approach previously taken by Davidson J to this required characteristic and how s 13(2)(c) of the Act should now be applied, to a submission that the evidence relied upon by the Chief Executive to establish this criterion was insufficient to meet the necessary high threshold. While some of these grounds are interrelated, I endeavour to address each in turn.
49 At [96].
The test for an absence of understanding or concern
[69] Mr Bailey submitted that the approach taken by Davidson J to the assessment of the s 13(2)(c) criteria conflated distinct or separate traits that were required to be independently considered. In particular, he argued the approach taken by this Court when imposing the PPO, illegitimately drew upon Mr Douglas’ level of intense drive or urge to commit a particular form of offending when assessing whether he had a sufficient or meaningful understanding or concern for the impact of his offending on victims.50 Mr Bailey was critical of the way the Judge had couched his reasoning regarding an absence of understanding or concern by reference to the strength of Mr Douglas’ “urges and impulses” when assessing the potential efficacy of that understanding or concern on Mr Douglas’ risk of reoffending. Davidson J concluded that Mr Douglas’ behaviour did not demonstrate any “meaningful understanding or concern” and he concluded that “under impulse or urge”, the understanding Mr Douglas “evinces” will have no influence on his conduct given the opportunity to reoffend.51
[70] Mr Bailey argued this approach is problematic because it has been recognised that whilst the s 13(2) characteristics are necessary for a finding of very high risk of imminent serious sexual offending, their presence alone will not automatically satisfy that statutory threshold — each are necessary preconditions that must be fulfilled before a respondent can be assessed for risk of imminent sexual offending.52 Mr Bailey argued that whether the threshold of very high risk is met will be dependent on a range of factors and the interplay between them, including the four s 13(2) factors, however, before that analysis can be undertaken, each of the four s 13(2) factors must be objectively and independently assessed.
[71] The fact an offender’s level of understanding or concern for the victim has no operative effect in preventing their offending is, in Mr Bailey’s submission, irrelevant to whether they possess any understanding or concern. He cited the example of a thief who has clear insight into the wrongfulness of depriving an owner of their money or possessions and who may not necessarily wish to deprive their victim of their property
50 Public Safety (Public Protection Orders) Act, s 13(2)(a).
51 Chief Executive of the Department of Corrections v Douglas, above n 1, at [96].
52 Chisnall v Chief Executive of the Department of Corrections, above n 27, at [25].
but nonetheless places their own interests ahead of those of their victims. He argued that the failure of the thief’s appreciation of the consequences of their crime to prevent them offending did not extinguish their understanding of the impact of their actions on the victim.
[72] Mr Bailey argued that the s 13(2) characteristics are simply prerequisites that are not linked to the ultimate assessment of an offender’s risk level. Parliament required such preconditions to be met before an offender can be eligible to be assessed as representing a very high risk of imminent serious sexual offending. In his submission, all the Court is required to assess at this stage in the analysis is whether the characteristic is either present or absent, as the case may be, and established to the required level.
[73] Mr Bailey submitted that Davidson J, by assessing Mr Douglas’ level of understanding or concern with reference to his “impulse”, “urges” and “compulsivity”, had improperly “intertwined” the assessment of the separate individual traits. He argued that, by doing so, the Judge had effectively merged the assessment of the four separate components of a respondent’s severe disturbance in behavioural functioning, with the ultimate assessment of whether that respondent represents a very high risk of serious sexual offending if left unsupervised.
[74] In support of his argument, Mr Bailey placed some reliance on the Court of Appeal’s judgment, P (CA388/2018) v Chief Executive of the Department of Corrections, that allowed an appeal from the imposition of an ESO made by this Court. The Court referenced s 107IAA(1)(d)(ii) of the Parole Act 2002 that sets out one of four preconditions to a finding of “high risk” required for the purpose of making an ESO. Part of that particular prerequisite requires the respondent to display an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims. The Court of Appeal observed:53
[53] In our view, s 107IAA(1)(d)(ii) invites a relatively simple inquiry: does P understand the impact of his offending on his victims? As Davidson J suggested in Douglas, the underlying legislative and psychological assumption is that if an offender is able to imagine the hurt, fear and shame caused to his or her victims by the relevant offending then he or she is less
53 P (CA388/2018) v Chief Executive of the Department of Corrections [2018] NZCA 599 at [53].
likely to wish to cause such hurt, fear and shame to others in future, thereby reducing the risk of future reoffending...
[75] Mr Bailey argued the Court of Appeal’s description of this rationale (the underlying legislative and psychological assumption) supported his submission that the characteristic is to be independently assessed from the effectiveness of the offender’s understanding or concern. However, in my view, to the contrary, this underlying assumption as to how insight may deter reoffending tends to support Davidson J’s approach to the assessment of the characteristic. Indeed, that approach was endorsed by the Court in the same case.
[76] The Court of Appeal found the High Court erred when it remarked that the appellant’s “conduct falls well short of a complete understanding”, thereby suggesting a reversal of the onus onto the appellant. However, the Court, when addressing the issue of an absence of understanding, expressly referred to the correct test as being that initially articulated by the High Court in that case which referenced Davidson J’s approach in Douglas.54 The Court of Appeal stated:
[42] As noted earlier, our sole focus in this judgment is on the High Court finding that P demonstrated an absence of understanding for or concern about the impact of his offending on his victims. The Judge began his analysis of that issue by noting that the meaning of the phrase “absence of understanding or concern” had been considered by the High Court in Chief Executive of the Department of Corrections v Douglas and followed in a number of other High Court decisions. There (in the context of an application under the Public Safety (Public Protection Orders) Act 2014) Davidson J held that an “absence” of understanding did not require that a respondent be shown to have no understanding whatsoever but, rather, that there be an absence of any meaningful understanding or concern. A person could, therefore, express a level of understanding on an intellectual basis or an understanding that “might be parroted or rote”, without meeting the necessary threshold. The Judge quoted with approval Davidson J's conclusion that:
“ … the lack of, or deficit in understanding or concern must be at such a level as to fit the plain purpose of the Act in this respect, namely to identify whether the usual behavioural and psychological checks on a potential offender will not apply, because for example, there is no sufficient understanding or concern for the effect of the criminal act on a victim.”
[77] The Court of Appeal has again recently confirmed the correctness of the approach taken by Davidson J which this Court is obliged to follow. In McIntosh v
54 At [49].
Chief Executive of the Department of Corrections, the Court of Appeal addressed the statutory wording of s 107IAA(1)(d) of the Parole Act — “a lack of acceptance of responsibility or remorse for past offending” and “an absence of understanding or concern about the impact of his or her sexual offending on actual or potential victims”.55 This Court held the provision must be interpreted as a relative concept so as not to defeat the intent of the legislation, and followed the approach taken by Davidson J in Douglas.56 In rejecting a submission that the High Court had erred in doing so, the Court of Appeal referred to the mandatory characteristics that any offender who is to be made the subject of an ESO must have:57
[22] ... The second two [characteristics] — limited self-regulatory capacity; and lack of acceptance of responsibility or remorse for past offending and absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims — could be described as protective characteristics. These characteristics cannot be construed and applied in absolute terms. They are human characteristics and, to the extent they are present, they will vary from one person to another.
[23] Offenders who present a high risk of committing a relevant sexual offence will not have the protective characteristics described in s 107IAA(1)(d). This is consistent with the statutory wording which speaks of “a lack of” and “an absence of” these protective characteristics. However, the absence (or lack) of these characteristics are indicia of high risk offenders only because these protective characteristics mitigate this risk. The focus must therefore be on whether the acceptance of responsibility, remorse, understanding or concern are material in the given case in the sense that they are present to a sufficient degree to mitigate the relevant risk. Parliament cannot have intended that any degree of presence of these protective characteristics (no matter how limited and whether or not in any way operative to mitigate the risk), would preclude a person from being assessed as being at high risk. Such an interpretation would plainly be inconsistent with the statutory purpose of public protection.
[78] The Court of Appeal, after endorsing this approach and the underlying legislative rationale it had previously articulated in P v Chief Executive of Department of Corrections, rejected the submission that it was irrelevant whether an offender’s level of acceptance, remorse, understanding or concern, would have any protective effect against the risk of the offender committing a relevant sexual offence.58 Despite Mr Bailey’s critique of the approach adopted by the Court of Appeal in McIntosh, and
55 McIntosh v Chief Executive of Department of Corrections [2021] NZCA 218 at [14].
56 At [14].
57 At [22]–[23].
58 At [26].
subject to the potential effect of the same Court’s subsequent finding that the ESO and PPO regimes are not NZBORA compliant, its endorsement of Davidson J’s analysis would oblige me to adopt the same course. The requisite absence of understanding or concern by Mr Douglas for the impact of his offending on victims (actual or potential) is required to be assessed on the basis of the protective effect of any understanding or concern that could materially bear on his risk of reoffending.
[79] Proceeding on that basis, I do not consider the Court is prohibited from taking into account the compulsivity of a respondent to sexually offend or the strength of the person’s impulse or urge to do so. If it is accepted, as it has been by the Court of Appeal, that the absence of this characteristic is to be assessed in the context of the protective effect of what understanding or concern a particular respondent may be able to exhibit, it will be necessary to have regard to other evidence that bears on the efficacy of that understanding or concern to deter reoffending.
An unreliable indicator of recidivism
[80] In support of his argument that the s 13(2)(c) factor should be considered entirely independently of an offender’s other traits, Mr Bailey referred to obiter comments by Cooke J in Miller v Department of Corrections when dealing with an application for an ESO.59 In addressing the statutory prerequisite required by s 107IAA(1) of the Parole Act, which, as earlier noted, requires there to be both a lack of acceptance of responsibility or remorse and, additionally, an absence of understanding or concern for the offender’s victims, Cooke J referred to evidence before him that denial, minimisation, and lack of victim empathy have been found in multiple examinations of sex offender recidivism risk values to have minimal or no relationship to subsequent downstream offending. Some offenders can admit their offending, participate in rehabilitative programmes, express regret and then profess a commitment not to reoffend, but then go on to do so. Whereas another offender may continue to deny their offending out of intense feelings of shame or to limit the opprobrium and potential vilification they may otherwise attract, should they admit their offending. The point is made that an offender’s denial, lack of remorse, and
59 Miller v Department of Corrections [2021] NZHC 983.
therefore apparent absence of insight into the effects of the offending, may be a neutral factor and not highly material to the issue of the risk of reoffending.60
[81] Leaving to one side the absence of any direct evidence before me in this case, I do not consider it materially advances Mr Bailey’s argument regarding the approach to be taken to the interpretation and application of s 13(2)(c). As counsel himself acknowledged, the precondition is based on the underlying legislative and psychological assumption that if an offender is able to imagine the hurt, fear and shame caused to his or her victims by the relevant offending then they are less likely to wish to inflict harm on others in the future, thereby reducing the risk of future reoffending.61 As observed by this Court in Miller, contrition or alternatively, denial may not be accurate indicators of rates of recidivism.62 Both the Parole Act and the Public Safety (Public Protection Orders) Act, however, proceed on the basis that particular characteristics (to a high level) are required to be present in order to be satisfied a respondent exhibits a severe disturbance in behavioural functioning of a type that renders them potentially eligible to be the subject of an order. The absence of understanding or concern is a precondition but is not determinant of whether the respondent is at very high risk of imminent serious sexual offending.
[82] The limitations on what can be drawn from such a characteristic will not be determinate of whether there is a very high risk of imminent serious sexual offending. It is simply a prerequisite. The limitation on the inference that can safely be drawn from an offender’s attitude does not alter the need for the precondition to be fulfilled, which in turn requires an assessment, in the individual case, of the understanding or concern that a respondent may have and its potential protective effect, if any.
Evidential insufficiency
[83] Mr Bailey submitted the evidence relied upon by the Chief Executive to establish that Mr Douglas has to a high level an absence of understanding or concern for the impact of his offending on actual or potential victims was not sufficient to
60 At [39].
61 P (CA388/2018) v Chief Executive of the Department of Corrections, above n 53, citing Chief Executive of the Department of Corrections v Douglas, above n 1, at [83].
62 Miller v Department f Corrections, above n 59.
satisfy this precondition. He argued that at the time Davidson J made his assessment the issue had been finely balanced, and the current evidence falls short of establishing this characteristic to the necessary high level.
[84] Firstly, Mr Bailey referred to a change in the expert evidence regarding the effect to which Mr Douglas was influenced by psychopathic traits. The Chief Executive’s evidence in 2016 relied in part on Mr Douglas exhibiting high levels of psychopathy and thus, it was argued, a greater risk of reoffending. Dr Barry-Walsh’s evidence was at the time, as it is now, that no psychopathy is evident. A clinical psychologist, Mr Craig Prince, in his report prepared in September 2019, similarly opined there had been too much emphasis placed on Mr Douglas having traits of psychopathy. He contrasted the different conditions of ASD and psychopathy and emphasised they have few similarities and rarely co-occur.
[85] Mr Prince noted the lack of association between autism and psychopathy and that, while both conditions are characterised by deficits in empathy, an autistic individual’s difficulties are sourced from not knowing what other people think. They therefore lack cognitive empathy. Psychopaths simply do not care. They lack emotional empathy and have difficulties “resonating with other people’s distress”. Mr Prince, in his report, highlighted Dr Barry-Walsh’s earlier finding that Mr Douglas did not meet the criteria for a diagnosis of psychopathy, and that one should not therefore claim that Mr Douglas poses a significant risk of sexual reoffending based on the application of a screening checklist designed to assess the severity of symptoms of psychopathic personality disorder (PCL:SV).63
[131] The utility of these actuarial instruments has been challenged in previous cases, albeit in the context of ESOs. While the limitations of risk assessment tools were acknowledged, they were still viewed as providing assistance as part of the Court’s assessment of the statutory tests. For example, in McIntosh,77 the Court of Appeal addressed such criticism in the following way:
[35] [Counsel for the appellant] is correct when he observes that the actuarial tools routinely used by psychologists to assist with these types of assessments are not specifically calibrated to exclude offences which do not fit within the statutory definition of a relevant sexual offence. But this does not mean the tools are not useful and should not be relied on. In some circumstances, convictions for non-relevant sexual offences may contribute to
77 McIntosh v Chief Executive of the Department of Corrections, above n 55.
the assessment of the risk that an offender will commit a relevant sexual offence in the future. In every case, an overall assessment will be required to interpret the information obtained with reference to the particular offender’s profile and all other relevant evidence.
[132] That approach was affirmed by that Court in R v Chief Executive of the Department of Corrections, when it emphasised that the evaluation of high risk (which was the applicable threshold in that case) is one that is required to be made by the Court on the basis of all the evidence and information.78 This accords with both health assessors evidence that emphasised the importance of taking a holistic approach that takes into account all available information when applying their clinical judgment. Dr Ketchmark acknowledged that the assessment tools played an important part when assessing a person’s risk, but that it was necessary to look to other pieces of information as to why a person’s risk of reoffending may be lower or higher, or is otherwise consistent with the results of the actuarial instruments.
[133] Mr Bailey was critical of Ms Farrell’s view that the assessment tools played only a limited part when assessing the questions of risk that are central to applications for ESOs and PPOs. However, Ms Farrell made the point that the instruments do not assess “imminence”. She described the assessment tools as being only one part of the objective assessment of an offender’s future risk of reoffending that also includes her clinical assessment and judgment. I consider the health assessors’ approach is largely correct. The actuarial tools are one, albeit important, part of the risk assessment but it needs to be recognised these instruments have certain obvious limitations when applied in the present context, which must be taken into account and weighed as part of a multifaceted assessment of the very high risk of imminent offending.
[134] In addition to the issue of the utility of the risk instruments, both the Chief Executive and Mr Douglas made competing submissions regarding what could be taken from the results of these actuarial tools. I have already discussed how Ms Farrell assessed Mr Douglas as being in the 81.3rd percentile on the treatment responsivity subscale that formed part the VRS:SO, which, when compared with Mr Douglas’ previous results over the years, was described by Mr Bailey as a not insignificant change. In response, Ms Boshier emphasised there had been little movement in
78 R (CA586/2021) v Chief Executive of the Department of Corrections, above n 25, at [48].
Mr Douglas’ overall VRS:SO score, he having most recently been placed within the 93.6th percentile, which did not materially differ from his scores in previous years that placed him respectively in the 94.3rd and 93.3rd percentile range. It was also noted that the sexual deviance subscale had resulted in the least movement with Mr Douglas having been placed in the 89th percentile.
[135] I do not consider a discernible change in just one of Mr Douglas’ sub-scores relating to the VRS:SO that appears to have had no material impact on his overall result is particularly significant. However, a separate point made by Mr Bailey regarding the placement of Mr Douglas within the high or well above average risk of sexual reoffending category requires greater scrutiny. Mr Bailey argued that this categorisation does not necessarily align with the required statutory threshold of a very high risk of imminent serious sexual offending. I accept this must be so.
[136] Ms Farrell’s evidence was that the estimated sexual recidivism rate for the group with the same total VRS:SO score as Mr Douglas, measured after five years for any type of sexual offending, was assessed to be 41.05 percent and at 10 years 55.47 percent. The base rate for all sex offenders was 11.9 percent after five years and 18.2 percent after 10 years, hence the placement of Mr Douglas in the high or well above average risk category for sexual reoffending. However, as is apparent from Mr Douglas’ score, the actuarial instrument assessed Mr Douglas, by only a relatively small margin, as probably committing a sexual offence (of any type) over the next 10 years. Mr Bailey also highlighted Dr Ketchmark’s evidence that the highest risk category the testing tools adopt is level V, where expected recidivism rates are 85 percent or higher. Her evidence was that such rates are not observed in sexual offending populations and therefore the level V classification is reserved only for non- sexual offending risk assessment, which does not apply to Mr Douglas.
[137] As submitted by Mr Bailey, the 55.47 percent figure, while placing Mr Douglas at the upper margin of offenders at risk of sexual recidivism (albeit after 10 years) does not, at least in isolation, sit comfortably with the proposition that Mr Douglas’ risk of serious sexual offending is one that is imminent. Mr Bailey argued that this result does not support a finding that he is likely to offend at the first suitable opportunity, and that, if he was to meet such a threshold, his likelihood of
offending over such a period of time would need to be much higher than that assessed as a percentile of 55.47. This, he submitted, is underscored by the risk of such reoffending not being limited to serious sexual offending but one that encompasses less serious sexual offending and will ultimately be dependent on a range of factors, including Mr Douglas’ mood, sexual drive, relationship status, and other considerations that will likely vary over a lengthy period of time. Mr Bailey’s submission is there can be no certainty that these variables will combine to provide the type of “pathway” or necessary “preconditions” to render Mr Douglas at a very high risk of imminent serious sexual offending.
[138] Ms Boshier, in response, referred to the overall results of the actuarial instruments that placed Mr Douglas in the level Vb high or well above average risk category. However, as is apparent from the estimated sexual recidivism rate for this group, that does not translate into a level of risk that can necessarily be equated as being “very high” or “imminent”, particularly when regard is had to the period of time over which the rate of recidivism is measured (five and 10 years). Additionally, such metrics are not limited to serious sexual offending but also encompass lesser offending to which the statutory test does not apply.
[139] Ms Farrell, when explaining the level IVb category referred to how the health assessors were looking at “patterns of behaviour within a group” and that Mr Douglas falls into that bracket of offenders who are most likely to reoffend and have the highest rate of reoffending. She noted that Mr Douglas’ categorisation into the well above risk group means that in comparison to other offenders “in, say, a group of a hundred he is nearly at the top”. The difficulty with that analysis, however, is that if categorisation at the “top” indicates an offender to whom a recidivism rate of 41.05 percent applies (over five years) and a 55.47 percent sexual recidivism rate after 10 years, can that offender be considered to be at very high risk of imminent serious sexual offending? On the face of the figures alone, I do not consider that it logically can.
Two year gap in offending
[140] A further separate matter on which Mr Bailey placed some emphasis was the period of almost two years between June 2011 and May 2013 when there is no record
of Mr Douglas having offended while at large in the community. He was evicted from his supported accommodation in June 2011 following an attempt to obtain child exploitative material but was only convicted of further offending that occurred in June 2013, for which he was subsequently imprisoned. Whilst Mr Bailey acknowledges that “concerning/criminal behaviour” may have taken place during this period, he argues the focus must be on whether any “serious sexual” offending occurred.
[141] In the absence of Mr Douglas being apprehended for that type of offending, Mr Bailey argued this period is of some significance in assessing the question of “imminence”. He is critical of the two health assessors for not specifically addressing this part of the history, particularly because the level of monitoring of Mr Douglas over this period was negligible. Mr Bailey argued this period of time should have been analysed more thoroughly, with the implication being that over this approximate two years, and whilst relatively unsupervised, Mr Douglas has not committed a serious sexual offence. Mr Bailey submitted this aspect of Mr Douglas’ background detracts from any conclusion that whatever his risk of committing a serious sexual offence — albeit even a very high risk — it was not one that can be labelled as “imminent”. Nor, it was submitted, could it be suggested that his risk of committing a serious sexual offence imminently has increased since that time.
[142] The two psychologists called on behalf of the Director-General acknowledged this period when it appears Mr Douglas was offence-free is a relevant factor, as is all his history. However, as noted by Ms Boshier, this is not a new piece of information, it is part of Mr Douglas’ record and has been known to all the experts who have reviewed Mr Douglas’ case and considered the imminence criteria, including those instructed by Mr Douglas. None of those health assessors, including Dr Barry-Walsh who opined that any return to the community by Mr Douglas may result in him reoffending “quickly” depending on circumstance and opportunity, considered this part of Mr Douglas’ history to be particularly significant.
[143] I consider this two-year period is to be acknowledged as an aspect of Mr Douglas’ background, but one that is largely overtaken by the nature of his offending around that time which involved him making contact with and developing a relationship with an adolescent boy for the purpose of offending against him, and the
subsequent series of assessments that have been undertaken that confirm Mr Douglas’ predilection to sexually offend in a serious sexual way against male children. Further, the extent to which the health assessors can place store on the absence of recorded offending during this period is tempered by disclosures Mr Douglas has made at various times regarding undetected offending that occurred when the opportunity became available to him, albeit admissions that Mr Douglas has periodically retracted.
[144] Having regard to Mr Douglas’ wider background, including his variable reports of other unreported offending, but, moreover, the uniformity of the expert opinion regarding particular features of his makeup that predispose him to commit serious sexual offences that have been the subject of regular review over recent years, I do not consider much significance can be attached to this period of apparent non- offending. Mr Bailey’s reliance on this approximate two-year period as being relevant to the question of “imminence” rests on the assumption it truly reflects a time when Mr Douglas abstained from serious sexual offending despite there being other factors that indicate that may not have been the case. I do not therefore consider the strength Mr Bailey seeks to attach to this part of Mr Douglas’ history, for the purpose of assessing the statutory threshold of imminence, realistically assists, at least not to the degree for which he contends.
Conclusion regarding whether there still is a very high risk of imminent serious sexual offending
[145] In order to address whether there is still a very high risk of imminent serious sexual offending by Mr Douglas, the Court is required to assess not only whether future offending will be committed by him if left unsupervised, but whether there is a very high risk of him doing so. Further, that such offending can be expected to be committed as soon as he has a suitable opportunity to do so. The evidence does not indicate any real material change in Mr Douglas’ presentation. Overall, the expert opinion remains the same — in broad terms, Mr Douglas is highly likely to reoffend if left unsupervised. Dr Barry-Walsh acknowledged that without a high level of supervision of a type similar to that which Mr Douglas currently receives, there is a justified concern he would likely return to a pathway that would involve a period of grooming and result in a repetition of his past offending. Depending on “circumstance
and opportunity”, it was his opinion there is a likelihood he may quickly revert to such conduct.
[146] However, Dr Barry-Walsh still holds the same reservations regarding how adequately or accurately health assessors can evaluate the threshold of “very high risk” that he expressed at the time of the original PPO application. In the absence of considerably greater legislative guidance, he described himself as “struggling” with that term. Dr Barry-Walsh’s concerns are perhaps best exemplified by the application of the risk assessment tools and the interpretation of their results. I have already canvassed the difficulties that arise from applying these actuarial instruments to the assessment of very high risk and whether that risk is one that is imminent should the respondent no longer be subject to supervision. In Mr Douglas’ case the results of that testing have consistently placed him in the very top bracket for sexual recidivism. That categorisation is no doubt a necessary prerequisite to any finding that a respondent is at very high risk of imminent serious sexual offending, but by itself falls well short of justifying such a conclusion.
[147] The standard of “very high risk” of serious sexual offending is not defined in the Act, but in order for the term to be interpreted in a rights-consistent manner it needs, at least, to connote a magnitude of risk that strongly justifies the continuation of the PPO.79 Similarly, the requirement that the very high risk be of imminent serious sexual offending must be interpreted and applied in as rights-compliant manner as the terms of the Act reasonably permit. Mr Bailey argued this required a risk of offending that would almost immediately occur upon Mr Douglas being left unsupervised. However, the statutory definition of the term refers to an expectation the respondent will commit an offence as soon as they have a suitable opportunity to do so, and that aspect of its meaning must be factored into the test.
[148] In my view sexual offenders who can be expected, once left unsupervised, to expeditiously embark upon a “pathway” to create or cultivate circumstances that will permit them to offend, are capable of being categorised as being at risk of imminent offending. Sexual offending against children or young people may often require the
79 R (CA586/2021) v Chief Executive of the Department of Corrections, above n 25.
offender to develop relationships or associations, build trust, manipulate situations, and engage in grooming behaviours that are undertaken from the very outset in order to offend against victims. I have considered whether such preliminary steps nullify the required element of imminence that must attach to the offending. The focus must be on the predicted immediacy of the initiatives the offender can be expected to take if left unsupervised to procure a suitable opportunity to offend, particularly in the context of sexual offending against children, and the immediate danger or risk to public safety that arises as a result. Such opportunities may occur very rapidly, if not immediately, in other cases, the cultivation of a suitable opportunity may require more time, but the short point is that in either case, the victim is in immediate danger because of the respondent’s compulsive behaviour.
[149] Where preparatory steps are a necessary prerequisite to realising the suitable opportunity, I do not consider in the context of serious sexual offending against children, they can realistically be severed from the actual commission of the crime, particularly not where the evidence of the intensity of the respondent’s drive or urge to offend is acute. Imminence is linked to a suitable opportunity to offend and a PPO is designed to prevent that opportunity arising,80 which in the case of Mr Douglas may not be immediately upon his release. Such an approach is consistent with the requirement that the order be necessary to protect the public, in the sense that without such restrictions the respondent will constitute a danger to the community.81
[150] I return to the threshold of “very high risk” about which the Court must be satisfied. As earlier observed, in order to achieve a test that is capable of being reconciled with the requirements of NZBORA, the standard must be one that almost borders on the inevitability of the respondent’s imminent offending if left unsupervised. Arguably, anything less, in light of the declarations of inconsistency previously made by the Court of Appeal, will fall short of the clear or strong justification that is required to be demonstrated for the PPO to remain in place.
[151] As noted, the need to meet this threshold of “very high risk” suggests the Court is almost required to be satisfied the risk of further imminent serious sexual offending
80 Chisnall v Chief Executive of the Department of Corrections, above n 76, at [39].
81 Chisnall v Attorney-General, above n 16, at [225].
will actually materialise if the PPO is not continued and that Mr Douglas will offend as soon as he has the suitable opportunity to do so. The limitations of the risk assessment instruments in the present context, gives cause for considerable pause when addressing such a test. Not only are they designed to assess risk over considerably longer periods that extend beyond the kind of immediate risk of danger to which a PPO is directed, but, as earlier observed, the categorisation of a person such as Mr Douglas in the highest group of those at risk of sexual recidivism will not by itself demonstrate the calibre of risk necessary to meet the threshold required for a PPO. For the purposes of such an order, such limitations qualify the utility of those actuarial tools.
[152] The Court is therefore largely reliant on the wider assessment and clinical judgement provided by the expert psychological and psychiatric opinions that seek to address the statutory test. Notwithstanding the reservations that have been expressed regarding the difficulty of this task, which I share, the evidence adduced for the purpose of the statutory review of the PPO is, in almost all material respects, consistent with that provided to this Court on the hearing of the original PPO application, and with the reports annually furnished by health assessors to the review panel over the following five-year period. In the absence of any opinion to the contrary, the expert evidence is that Mr Douglas continues to present a very high risk of imminent serious sexual offending if he was to no longer be subject to the levels of supervision, monitoring and external control provided by the PPO.
[153] On the basis of the body of evidence provided to the Court for the purposes of the review application, much of which I have traversed in the course of this judgment, I am satisfied there is strong justification for Mr Douglas to remain subject to the PPO notwithstanding my reservations regarding the limitations inherent in the actuarial instruments used as part of that assessment which do not directly address the statutory test.
Result of review
[154] The result, therefore, of the Chief Executive’s review of the PPO is that the reports provided indicate Mr Douglas continues to exhibit a severe disturbance in
behavioural functioning of the kind described in s 13(2).82 Moreover, there still is a very high risk of imminent serious sexual offending by him.83 It follows that I am not satisfied, on the balance of probabilities, that there no longer is a very high risk of imminent serious sexual offending by Mr Douglas.84
Review of management plan
[155] Where the result of the review is the continuation of the PPO, the Court is required to review the management plan of the resident to ascertain whether it continues to be appropriate and may make any recommendations to the manager of the residence in which the resident is required to stay.85
[156] Mr Bailey has put forward a number of suggested recommendations the Court should make regarding Mr Douglas’ management plan. These include a number of issues traversed by Dr Barry-Walsh at the conclusion of his report and recommendations referred to in Dr Ketchmark’s report that have been made by Mr Douglas’ treating psychologist, that he be afforded greater leave opportunities.
[157] Before expressing any views regarding the appropriateness of Mr Douglas’ current management plan and making any recommendations, I would be assisted by receiving a memorandum from the Chief Executive updating the Court as to Mr Douglas’ current management plan and responding to the proposed initiatives that have been raised by Mr Bailey. A constructive way forward may be for counsel to confer regarding the issue of further treatment and leave opportunities and, with input from the Department of Corrections, to provide me with an up to date report that addresses the type of proposals canvassed in the experts’ reports.
[158] At the conclusion of that process, counsel would need to file memoranda addressing the question of any suitable recommendations (agreed or otherwise). In the absence of being able to accurately gauge the time needed to complete this process, I will not at this point impose a timetable. However, I direct counsel to file a joint
82 Public Safety (Public Protection Orders) Act, s 18(3).
83 Section 18(2).
84 Section 18(4).
85 Section 19.
memorandum within 14 days of the date of the judgment responding to my proposal and providing a suitable timeframe for its completion.
Solicitors:
Crown Solicitor, Christchurch
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