Chief Executive of the Department of Corrections v Hawkins
[2019] NZHC 482
•19 March 2019
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSES,
VICTIMS, AND CONNECTED PERSONS PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011 AND S 139 OF THE CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-214
[2019] NZHC 482
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
IVAN KOHIRI HAWKINS
Respondent
Hearing: 28 February 2019 Appearances:
B Tantrum and D B Dow for the Applicant R Eagles (via AVL) for the Respondent
Judgment:
19 March 2019
JUDGMENT OF GAULT J
This judgment was delivered by me on 19 March 2019 at 2:30 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Mr B Tantrum and Mr D B Dow, Meredith Connell, Office of the Crown Solicitor, Auckland Mr R Eagles, Eagles Eagles and Redpath, Solicitors, Invercargill
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v HAWKINS [2019] NZHC 482 [19
March 2019]
[1] The Chief Executive of the Department of Corrections applies for an extended supervision order (ESO) in respect of the respondent, Mr Hawkins, for a term of five years under s 107I of the Parole Act 2002 (the Act). The grounds are that Mr Hawkins has a pervasive pattern of serious sexual offending, and there is a very high risk he will commit a relevant sexual offence in the future.1
[2] Mr Hawkins was released from prison in October 2018 after serving a lengthy sentence for sexual offending, subject to release conditions imposed by the New Zealand Parole Board. He is currently back in custody following an alleged breach of conditions. His final release date is 6 April 2019.
[3] Mr Hawkins opposes the ESO being made. He argues there has been no pervasive pattern of serious sexual offending as required under s 107I, and there is no high risk that he will in future commit a relevant sexual offence.
The statutory regime
[4] Part 1A of the Act provides jurisdiction for the making of ESOs, lasting up to 10 years at a time, where offenders have been convicted of certain offences and have been assessed by a health assessor.2 The purpose of an ESO is to protect members of the community from offenders who, after serving a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.3 It does so through the imposition of a closely monitored regime of supervision and management of such persons. The threshold for making an ESO is high, reflecting the severe restrictions that it places on many facets of the recipient’s life.4
[5]Section 107I(2) sets out the grounds on which a Court may make an ESO.
A sentencing court may make an extended supervision order if, following the hearing of an application made under section 107F, the court is satisfied,
1 As required by s 107F(2), the application was accompanied by a report by a health assessor. The report addressed the matters required by s 107F(2A). The report also considered the risk Mr Hawkins will commit a relevant violent offence in the future but, based on the conclusions in the report, the Chief Executive does not seek an ESO on the basis of a very high risk of relevant violent offending.
2 Section 107A, Parole Act 2002. There is no dispute that Mr Hawkins is an eligible offender sentenced to a finite term of imprisonment for a relevant sexual offence.
3 Section 107I(1).
4 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [4].
having considered the matters addressed in the health assessor's report as set out in section 107F(2A), that—
(a)the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and
(b)either or both of the following apply:
(i)there is a high risk that the offender will in future commit a relevant sexual offence:
(ii)there is a very high risk that the offender will in future commit a relevant violent offence.
[6] In relation to “a pervasive pattern of serious sexual or violent offending” in s 107I(2)(a), the Court is entitled to take into account past sexual conduct, including unproven allegations and conduct that does not actually constitute an offence.5
[7] In relation to the requirement for the Court to be satisfied that there is a high risk that the offender will in future commit a relevant sexual offence under s 107I(2)(b)(i), s 107IAA(1) provides that a Court may determine that there is such a risk only if it is satisfied that the offender:
(a)displays an intense drive, desire, or urge to commit a relevant sexual offence; and
(b)has a predilection or proclivity for serious sexual offending; and
(c)has limited self-regulatory capacity; and
(d)displays either or both of the following:
(i)a lack of acceptance of responsibility or remorse for past offending:
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
[8] In relation to s 107IAA(1), the Court of Appeal in Chief Executive, Department of Corrections v Alinizi confirmed that “displays” in this context “does not import a requirement that the particular traits and behavioural characteristics, while required to be ‘present’, must be externally manifested at the time of application”.6
5 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [42].
6 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [27].
[9] If the Court decides to make an ESO, it must go on to determine the duration of the order. Section 107I(5) states that the term must be the minimum period required for the purposes of the safety of the community in light of:
(a)the level of risk posed by the offender; and
(b)the seriousness of the harm that might be caused to victims; and
(c)the likely duration of the risk.
[10] A person who is the subject of an ESO must comply with the standard conditions set out in s 107JA of the Act and any special conditions imposed by the Parole Board under s 107K. Breaching those conditions is an offence punishable by imprisonment of up to two years.
[11] After an ESO order has been made, s 107M provides that, on application by either the offender or the Chief Executive, the Court may cancel the ESO if satisfied on the basis of the matters set out in s 107IAA that the offender poses neither a high risk of committing a relevant sexual offence, nor a very high risk of committing a relevant violent offence within the remaining term of the order.
Issues
[12] Following the statutory framework and the Court of Appeal statement of the approach in Alinizi, I assess the issues for determination as follows:
(a)Does Mr Hawkins have, or has he had, a pervasive pattern of serious sexual offending?
(b)Does Mr Hawkins meet the qualifying criteria set out in s 107IAA, listed above at [7]?
(c)Does Mr Hawkins present a high risk of committing a relevant sexual offence in the future?
Does Mr Hawkins have, or has he had, a pervasive pattern of serious sexual offending?
[13] Mr Hawkins has five convictions for sexual offending. The first four convictions relate to offences committed in October 1991–February 1992:
(a)two convictions for indecently assaulting a girl under 12 on 31 October 1991 (when Mr Hawkins was aged 30) and a conviction for unlawful sexual connection with a girl under 12 on 1 February 1992 – for which he was sentenced to six months’ imprisonment on each charge (cumulative on one charge); and
(b)a conviction for attempted sexual violation of a severely subnormal girl under 16 on 16 February 1992 – for which he was sentenced to two years and six months’ imprisonment.
[14] The fifth conviction was for sexual violation by unlawful sexual connection against a 12-year-old girl in October 2010. Mr Hawkins was sentenced to eight years’ imprisonment, with a minimum period of imprisonment of two-thirds, five years and four months.
[15] The summary of facts for the 2010 offence records that the 12-year-old female complainant visited Mr Hawkins at his neighbouring home in the evening and at approximately 10:30 pm they went on a sightseeing tour in his vehicle.
[16] After travelling throughout the night, he stopped his vehicle in a secluded reserve at approximately 9:30 am. After being parked for some time he reached across the victim and activated the lever for the passenger seat to slide backwards and also the lever to recline the back of the seat. Mr Hawkins then climbed across the centre console to a position in the footwell, facing the complainant.
[17] Mr Hawkins began to remove the complainant’s underwear. She told him to stop what he was doing and began to get upset and cry. He continued to slide her underwear from her legs and sexually violated her by performing oral sex on her, without her consent.
[18] After a short time of violating the complainant and listening to her crying, Mr Hawkins stopped and returned to his driver’s seat. He then drove off, making small talk with the complainant on their journey back. Once back, he dropped the complainant off near her house.
[19] Once arriving home and reaching the realisation of what he had just subjected the 12-year-old complainant to, Mr Hawkins was overcome with guilt and contacted authorities. He was taken to the police and admitted in full the facts as outlined.
[20] Mr Tantrum, counsel for the applicant, submitted that the threshold requirement of a pervasive pattern of serious sexual offending is clearly satisfied. He submitted the Courts have interpreted this requirement as not imposing a particularly high threshold, referring to Chief Executive of the Department of Corrections v Martin and Chief Executive of the Department of Corrections v Skudder.7 Martin involved two offences committed nine years apart and Skudder involved two counts of rape, committed two weeks apart, against a single victim.
[21] Mr Tantrum also referred to Mr Hawkins’ self-reporting of other conduct. Mr Bauer referred to recorded statements by Mr Hawkins:
(a)as far back as 1993 to a probation officer that he had been in trouble for similar incidents to the sexual offences; and
(b)last year to Mr Bauer that he would self-refer to SAFE for some sex offender counselling because of family pressure around some misunderstood touching between him and a young family member.
[22] Adopting the Court of Appeal’s approach in Holland, I can take into account past sexual conduct, including unproven allegations and conduct that does not actually constitute an offence.8 However, I would need to be satisfied this further conduct involves serious sexual offending.
7 Chief Executive of the Department of Corrections v Martin [2016] NZHC 1060 at [35]; and Chief Executive of the Department of Corrections v Skudder [2016] NZHC 1717 at [54]-[55].
8 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [42].
[23] Mr Eagles, counsel for Mr Hawkins, submitted that the threshold requirement is not met. He submitted that the four offences in late 1991 and early 1992 can be seen as “clustered”. There is then a major interval of some 18–19 years before the fifth offence. He referred to the definition of ‘pattern’, as “an arrangement or order discernible in objects, actions, ideas, situations etc”.9
[24] He also submitted that the expression ‘pervasive’ introduces the concept of spreading throughout. He said that even giving the statute a purposive interpretation, including protecting the interests of persons affected by ESOs, it would do violence to the meaning of the expression to say that these events constitute a “pervasive pattern”.
[25] Mr Eagles referred to Chief Executive of the Department of Corrections v Maindonald and Department of Corrections v Gate.10 However, there is no dispute in this case that Mr Hawkins’ offending is “serious sexual offending”.11 The issue is whether there has been a “pervasive pattern”.
[26] In Martin, Wylie J likened the requirement to the propensity rule, where a single previous conviction can in some situations show propensity. Mr Eagles submitted that a propensity to behave in a certain way is a lower standard than a “pervasive pattern”.
[27] In his oral submissions, Mr Eagles responsibly acknowledged that the statutory threshold is where the offender “has, or has had, a pervasive pattern”. It might be said that Mr Hawkins has had a pattern based on the 1991–1992 offences alone. However, Mr Eagles submitted that, even acknowledging that Mr Hawkins was in custody until about 1995 and was an in-patient in the Mason Clinic between 2003–2009, there was still a significant gap between the offending in 1991–1992 and the offending in 2010.
9 Shorter Oxford English Dictionary (Oxford University Press, 2019, online ed).
10 Chief Executive of the Department of Corrections v Maindonald [2018] NZHC 946; and Department of Corrections v Gate [2016] NZHC 2946. In that case there was only one conviction for sexual offending and other sexual conduct which Hinton J described as being all at the lower end of the scale.
11 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [44]-[45]; and
Wardle v The Chief Executive of the Department of Corrections [2017] NZCA 298 at [42]-[43].
[28] Mr Eagles referred to Muir J’s judgment in Chief Executive of the Department of Corrections v Ihimaera:12
The word “pervasive” is defined as “having the quality or power of pervading; penetrative, permeative, ubiquitous”. It is in turn used to qualify the word “pattern” which is defined to mean “a regular and intelligible form or sequence discernible in certain actions or situations; esp. one on which the prediction of successive or future events may be based”. Taken together the two words suggest that the previous offending must have characteristics so prevalent and common as to provide a reliable predictor of relevant future conduct.
[29] While acknowledging that predictiveness is particularly relevant at the risk assessment stage, Mr Eagles submitted the gap in this case did not meet the requirement for a “pervasive” pattern.
[30] Like Muir J,13 I note the Court of Appeal’s footnote in Shortcliffe v Chief Executive of the Department of Corrections that “Parliament’s use of the word ‘pervasive’ is important”.14
[31] I also note that when sentencing Mr Hawkins to eight years’ imprisonment for the 2010 offence rather than preventive detention as sought by the Crown, Keane J stated:15
It is true that you have shown in the past a propensity to offend sexually against young girls and vulnerable young women. But that offending was confined to a relatively brief period, 19 years ago. You do not show, as other offenders with paedophilic tendencies show, an entrenched pattern of which there are recent and troubling instances.
[32] Even so, viewed overall, I am satisfied that Mr Hawkins has had a pervasive pattern of serious sexual offending notwithstanding the significant gap between the four offences in 1991–1992 and the offence in 2010. The number of offences, their similarity, particularly in terms of the vulnerability of the victims (young girls and a mentally impaired teenaged girl), and the fact that Mr Hawkins was institutionalised for a number of the intervening years lead me to conclude there has been a pervasive
12 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [46].
13 At [37].
14 Shortcliffe v Chief Executive of the Department of Corrections [2016] NZCA 597 at [31], fn 23.
15 R v Hawkins HC Hamilton CRI-2010-019-3407, 4 November 2001 at [51].
pattern of serious sexual offending. I reach this conclusion leaving aside Mr Hawkins’ self-reporting of other conduct Mr Bauer referred to, at [21] above.
Does Mr Hawkins meet the qualifying criteria set out in s 107IAA
[33] Before dealing with the specific criteria required to be addressed by the health assessor and the Court, I should refer to the issues that have confronted Mr Hawkins throughout his life since adolescence.
[34] The health assessor in this case, Mr Fred Bauer, a registered clinical psychologist, prepared a report dated 11 May 2018 and gave oral evidence at the hearing. His report was based on interviewing Mr Hawkins, reviewing file information from community probation, prison and psychological services, and consulting with custodial officers, Department of Corrections psychologists previously and currently attending Mr Hawkins, and his Case Manager.
[35] Mr Bauer reported that Mr Hawkins has a history of mental health issues since an admission to Lake Alice aged 14 (although I note Mr Hawkins indicated this was an isolated instance until he was 26, which is consistent with Keane J’s reference to Mr Hawkins having suffered mental illness since 198716).
[36] Mr Hawkins has had numerous mental health hospital admissions and psychiatric diagnoses over the years, often related to his offending history, particularly when threats of violence or actual harm to others was involved, and following sexual violation of minors and an intellectually handicapped female victim.
[37] Symptoms of mental disorder were reportedly believed to have been significant around the time of such offences. For example, diagnoses at various times have included schizoaffective disorder, bipolar disorder/manic episodes, and borderline personality traits.
[38] Opinions varied as to the impact of a head injury that Mr Hawkins suffered in 1980. Dr Brindley from the Mason Clinic referred, in 2017, to a neuropsychological
16 R v Hawkins HC Hamilton CRI-2010-019-3407, 4 November 2001 at [27].
evaluation in 2003 by Dr J Sakdalan (RFPS), which indicated intellectual abilities within the average range, but significant deficits in executive functioning, attention and concentration, and cognitive flexibility (to name a few). It was concluded by Dr Sakdalan that Mr Hawkins’ cognitive profile was similar to previous findings of acquired impairment.
[39] A history of alcohol and drug (cannabis) abuse was also reported, which was associated with extreme mood swings, violence and driving offences.17
[40] I add that Keane J’s sentencing remarks indicate that Mr Hawkins was himself a victim of abuse. As a child his father was violent to him and he was sexually abused at a young age in an institution. Also later when he was a teenager. 18
[41] Another theme concerns treatment. Mr Bauer’s report noted that Mr Hawkins has not participated in treatment specific to his sexual offending with the Department of Corrections, for various reasons. In 1993, he did not attend a treatment unit for child sex offenders due to an extensive waitlist, with reference also made to his denial of offending, apparent difficulty concentrating, possible psychiatric disturbance and reluctance to comply with medication. During his current sentence, he has been referred to Te Piriti Special Treatment Unit, although it was said he would need to attain a reduction from his High security classification and demonstrate more stable behaviour in order to be realistically considered for admission to this intensive group programme for child sex offenders. In this regard, I note that in sentencing Mr Hawkins in 2011, Keane J referred to the desirability of Mr Hawkins being offered this very programme.19
[42]Mr Bauer also stated:
20 Of relevance to any consideration of psychological interventions (past and present), has been Mr Hawkins’ history of unreliable compliance with prescribed psychoactive medication. During this sentence of imprisonment his mental health has been overseen by RFPS. File information indicates an ongoing pattern of unstable behaviour,
17 Keane J’s sentencing remarks also mention “a lengthy history of drug and alcohol abuse that has worsened your mental state”: R v Hawkins HC Hamilton CRI-2010-019-3407, 4 November 2001 at [37].
18 At [36].
19 At [53].
including verbal abuse and throwing objects at other prisoners and medical staff, blaming others (or his medication) in place of taking responsibility for his actions, and unreliable compliance with psychotropic medications.
[43] According to Mr Bauer’s report, even recent file information noted that Mr Hawkins had not been able to engage effectively in treatment related to his sexual offending, due to his denial and mental instability.
[44] In his oral evidence, Mr Bauer provided an update in relation to treatment. Mr Hawkins was eligible for a short intervention programme, a group programme for sex offenders, but to get there needed a lower security classification, stabilised behaviour and motivation to do a test. He was referred for individual psychological treatment and attended 23 sessions. The early phases were around stabilising behaviour and handling the stresses and pressures of the prison and towards the end there were some sessions starting to discuss Mr Hawkins’ sexual offending, but the psychologist wrote that Mr Hawkins was still considering, or intending to get, a pardon for his 2010 offence so was not wholly engaged in sexual offending treatment. The conclusion of that psychologist was that the risk factors around sexual offending had not yet been addressed after all that period. There was some progress in mood management and some strategies around safety planning. There was a handover to a psychologist in the community after Mr Hawkins’ release. Mr Hawkins met with that psychologist four times, focusing on distress tolerance. This was interrupted by his remand in custody.
[45]I turn now to the qualifying criteria set out in s 107IAA.
Does Mr Hawkins display an intense drive, desire, or urge to commit a relevant sexual offence?
[46] The Court of Appeal’s judgment in Alinizi, referred to at [8] above, is pertinent in this case given the evidence of Mr Bauer in relation to this trait or behavioural characteristic. Mr Bauer stated in his report:
39The offender’s demonstration of an intense drive, desire, or urge to commit a relevant sexual offence
Mr Hawkins does not overtly demonstrate an intense drive or desire to commit a relevant sexual offence at the present time. However, the writer is of the opinion that the behavioural evidence in each of his five detected sexual offences suggested sexual urges to commit the offence, which were not well controlled or on occasion led to premeditated, relevant sexual offending. Impaired impulse control appears to be an aggravating factor to this risk issue for Mr Hawkins.
[47] In his oral evidence Mr Bauer explained that Mr Hawkins’ compliance with medication is very closely related to impulse control and that in turn has been featured strongly as it related to sexual offending. Mr Hawkins’ compliance with psychiatric medication in custody and in the community has been variable.
[48] Since Mr Bauer had used the word “overtly”, he was tested by Mr Eagles in relation to whether Mr Hawkins demonstrates an intense drive or desire at all. His answer referred to indications of a “latent” drive, desires or urges. His view was that when you look at the patterns and details of each of Mr Hawkins’ five detected sexual offences, including impulsive thoughts and impaired impulse control, we could well find again in the future the same urges arising from a latent situation.
[49] Mr Eagles characterised this as “this man is trapped by his past”. Mr Bauer responded that Mr Hawkins’ history suggested a pattern that could arise again. He said there is evidence with past behaviour patterns under certain circumstances, unless there has been specific therapy or treatment to address that very risk factor, that [recurrence] remains as a potential based on his past, so Mr Hawkins is not so much trapped by it but indicated by it.
[50] Following the Court of Appeal’s approach in Alinizi, even though described as “latent” rather than externally manifested at all times, I consider Mr Hawkins’ drive, desire or urge is present, and in that sense he “displays” it within the meaning of s 107IAA(1)(a).
[51] I asked Mr Bauer whether he was deliberately not going so far as to say the behavioural evidence suggested “intense” sexual urges, which is what the statutory test requires. His answer was helpful:
No, the intensity is the sexual urges I'm qualifying, I think they come at certain times of, if you like, where the situations converge and Mr Hawkins’ own
condition and at that time, have been intense enough for him to act on them which he doesn’t normally go around doing these things but on occasions for whatever his reasoning at the time, they’ve been intense enough to drive him to action on a vulnerable female so that’s the level that I put it at but it’s not burning all the time with him. I don't advocate that.
[52] Having considered the matters addressed in Mr Bauer’s report and heard his oral evidence, I am satisfied that Mr Hawkins displays an intense drive, desire, or urge to commit a relevant sexual offence. As Mr Bauer acknowledged, Mr Hawkins’ urges are not all the time but on occasions where situations converge – principally not taking his psychiatric medication, impaired impulse control and opportunity.
Does Mr Hawkins have a predilection or proclivity for serious sexual offending?
[53]Mr Bauer stated:
40The offender’s predilection of proclivity for serious sexual offending.
In the writer’s opinion, Mr Hawkins has in the past and will in the future, in circumstances of opportunity, have sexual thoughts of having sex with a vulnerable and/or young female. His past offending behaviour and assessed impaired impulse control lead to a risk that he will act on those thoughts. It is suggested that this may equate to a proclivity to commit a relevant sexual offence, even if not acknowledged by Mr Hawkins at the present time.
[54] Mr Eagles asked Mr Bauer about this last sentence. Mr Bauer acknowledged that Mr Hawkins has not expressed a desire to sexually offend so his proclivity is not as clear as if he was fully expressing it, but said repeated past behaviour does indicate a pattern. Again, Mr Bauer referred to Mr Hawkins’ impaired impulse control, which Mr Hawkins himself identified in his personality questionnaire. Mr Bauer said that is an enduring pattern. Mr Bauer acknowledged that his view is qualified because Mr Hawkins’ impulse control is variable:
on occasions when that’s low; wrong situation, wrong time of opportunity we may find that this reoccurs … I wouldn’t express it that way if I thought there [sic] was negligible or insignificant. I think there is a consideration we need to consider there, but I can’t be adamant that it will either.
[55] I need not be certain that serious sexual offending will reoccur, but I accept Mr Eagles’ submission that I do need to be satisfied that such a predilection or
proclivity exists now. Having considered the evidence, I am satisfied that Mr Hawkins has a predilection or proclivity for serious sexual offending.
Does Mr Hawkins have limited self-regulatory capacity?
[56]Mr Bauer stated:
41The offender’s self-regulatory capacity.
It is the writer’s opinion that Mr Hawkins’ self-regulatory capacity is diminished by: chronic vulnerability to mental disorder, unreliable compliance with psychoactive medication, likely impaired executive functioning, and aspects of his assessed personality disorders (including impulsiveness) and severe personality syndromes (including manic phases), which are exacerbated by stressors in community environments.
Mr Hawkins’ sexual offences appear to have variously included elements of impulsiveness and/or unreliable self-regulation of sexual thoughts, urges or behaviour in situations of opportunity. It is considered that this was likely even where planning/grooming may have been involved. Current behavioural evidence within the prison environment is also consistent with an assessment of unreliable self- regulatory capacity in general.
[57] This limb of the statutory test can be dealt with briefly. I am easily satisfied, based on Mr Bauer’s evidence, that Mr Hawkins has limited self-regulatory capacity.
Does Mr Hawkins display a lack of acceptance of responsibility or remorse for past offending?
[58]Mr Bauer stated:
42The offender’s acceptance of responsibility and remorse for past offending.
Mr Hawkins’ overall position with regard to his sexual offending tends to be one of denial, rationalisation, minimisation, and blaming victims or his medication regime at the time. An exception was his prompt disclosure of his index offence to community mental health services and then the Police. However, he subsequently retracted his admission of the oral sex part. During the current health assessment, Mr Hawkins did not portray acceptance of responsibility or remorse for harm caused to the victims of his sexual offending. The above position was consistent in the main part with his previously reported presentations. However, he reportedly expressed some feelings of disgust at his sexual offending in 1993, following his attempted sexual intercourse with an impaired female patient at a mental health
institution. Therefore the writer’s opinion is that Mr Hawkins has very limited acceptance and remorse for his past offending.
[59] This is consistent with Keane J’s sentencing remarks, which record Mr Hawkins’ indication to the pre-sentence report assessor that he wanted to humiliate the victim and that he did not perform oral sex on her, but also record the fact that earlier Mr Hawkins took the initiative admitting the offence, which did say something about his ability to accept responsibility.20 It is also relevant that Mr Hawkins had told the legal aid authorities that he wished to vacate his guilty plea, but the plea was confirmed on the day of sentencing. Mr Hawkins nevertheless appealed against his conviction; then the appeal was abandoned; later leave was sought to withdraw the notice of abandonment, which was dismissed by the Court of Appeal; and finally Mr Hawkins applied to recall the judgment, which was declined.21
[60]When asked about acceptance of responsibility at the hearing, Mr Bauer said:
What we find in that matter and others is Mr Hawkins takes various positions over the years as to whether he feels or admits culpability or moves to a position where he feels he’s been victimised … that shifting, resiling from admission of guilt … is a pattern with Mr Hawkins.
[61] I am satisfied that, overall, Mr Hawkins displays a lack of acceptance of responsibility or remorse for his past offending.
Does Mr Hawkins display an absence of understanding for or concern about the impact of his sexual offending?
[62]Mr Bauer stated:
43The offender’s understanding for or concern about the impact of his or her sexual offending on actual or potential victims
Given the extent of Mr Hawkins’ denials and rationalisations regarding his sexual offences, it is the writer’s opinion that Mr Hawkins has little understanding or concern about the impact of his sexual offending on his past victims or potential victims. His overriding position in relation to his sexual offending appears to be that he is the victim of false or exaggerated accusations, by the victims or others.
20 R v Hawkins HC Hamilton CRI-2010-019-3407, 4 November 2001 at [28], [29], [38] and [54].
21 Hawkins v R [2015] NZCA 340 and [2017] NZCA 112.
[63] This is consistent with Keane J’s sentencing remarks, which recorded the pre- sentence psychologist as saying that Mr Hawkins had virtually no insight and was persistently victim blaming, did not accept in any significant way responsibility for his offence and did not show any real instinct to undergo treatment.22
[64] I am satisfied that Mr Hawkins displays an absence of understanding for or concern about the impact of his sexual offending.
Conclusion
[65]I conclude that the qualifying criteria in s 107IAA are satisfied.
Does Mr Hawkins present a high risk of committing a relevant sexual offence in the future?
[66] Mr Bauer used both the Automated Sexual Recidivism Scale – Revised (ASRS-R) and the Violence Risk Scale – Sexual Offender Version (VRS-SO) (which Mr Bauer described as the gold standard in this field) to evaluate the risk that Mr Hawkins would commit further relevant sexual offences while in the community. These included instruments that assessed static and dynamic risk factors for sexual recidivism. Mr Bauer explained that the use of a multi-method assessment strategy has been endorsed as the best approach to determine convergence among risk factors and to allow assessment of independent contributions.
[67] Mr Hawkins’ ASRS-R score placed him in a group classified as at medium- low risk of further sexual offending. However, this is based solely on static risk predictors, which include a reduction in risk category based purely on age that may not be supported by Mr Hawkins’ behaviour given his offending when aged 49.
[68] On the VRS-SO, Mr Hawkins was assessed by Mr Bauer as being in the high-risk category at a very high level. Mr Hawkins’ estimated sexual recidivism rate based on his VRS-SO Pre-treatment score was 35.6% after five years23 and 49.8% after ten years.24
22 At [39]-[42].
23 95% confidence interval 27% to 45.2%.
24 95% confidence interval 42% to 57.6%.
[69] Based on Mr Hawkins’ ASRS-R and VRS-SO scores analysing static and dynamic risk factors along with specific information related to his offence pattern, Mr Bauer provided the following overall risk parameter statement:
31 It is considered that there is a Very High risk that Mr Hawkins will engage in relevant sexual offending within ten years of release. He is most likely to offend by sexual violation of a female under 16 or a vulnerable female over 16 years of age. The victim is likely to be known to Mr Hawkins and the offence preceded by grooming or relationship building. However, he has also demonstrated the potential for opportunistic and impulsive sexual violation of an unknown victim in at least one offence. The form of relevant sexual offending by Mr Hawkins may include sexual touching of the genital area through clothing, removing the victim’s lower clothing and digital, oral or penile contact with the victim’s genitalia. It is suggested that stress, mental instability and unreliable compliance with psychoactive medication are re-occurring, risk-aggravating factors for Mr Hawkins in regard to sexual offending.
[70] Mr Bauer explained this placed Mr Hawkins in the 95th percentile of the prison- based sample.
[71] Mr Bauer considered that at the time of writing his report in May 2018 Mr Hawkins did not have a viable release plan that would adequately manage his sexual re-offending risk factors in the community. In his oral evidence Mr Bauer confirmed that he was not aware of anything since that would alter his conclusions or risk assessment. I also note Mr Bauer’s oral evidence that Mr Hawkins will only receive support in the community if he chooses to avail himself of it. Mr Bauer regarded structure and guidance from a multi-disciplinary team as essential to formulating a safe release pathway.
[72]Mr Bauer concluded:
53 Mr Hawkins is an untreated sex offender with a record of five relevant sexual offences … He was assessed as being at very high risk for committing a further relevant sexual offence … It is the writer’s opinion that Mr Hawkins has a vulnerability towards sexual re- offending ... and suffers diminished self-regulatory capacity through; chronic susceptibility to mental disorder, unreliable compliance with psychoactive medication, likely impaired executive functioning, and aspects of his assessed personality disorders (including impulsiveness) and personality syndromes (including manic phases), which are exacerbated by stressors in community environments.
[73] I acknowledge Mr Bauer’s conclusions. In the end, I must evaluate whether Mr Hawkins presents a high risk of committing a relevant sexual offence in the future taking into account all relevant considerations.
[74] In assessing the weight to give to Mr Bauer’s clinical evidence, I bear in mind what the Court of Appeal said in R v Peta:25
[52] Risk assessments and the related judicial decision making for risk management are best informed through an individualised formulation of risk. This should draw upon a variety of different sources of information in an attempt to identify risk factors within an aetiological (causative) framework. This recognises that risk is contingent upon factors that are both environmental and inherent in the individual. Such an approach also helps avoid the shortcomings of a mechanical and potentially formulaic assessment of risk, one that is overly reliant on static historical factors and potentially insensitive to features of the individual that change with time and context. In our view, s 107I(2) in any event requires an individualised assessment.
[75] I take into account that Mr Hawkins is now 58 years’ old and the time that has passed since the offences in 1991–1992 and 2010.
[76] Reference back to Keane J’s sentencing remarks in 2011 indicate that the Crown then sought preventive detention on the basis there was a high risk Mr Hawkins would commit further qualifying violent or sexual offences at the end of any available finite sentence, and that girls under 16 would be especially at risk.26 At that sentencing, defence counsel submitted preventive detention could not begin to be justified, but that a finite sentence could also be reinforced by an ESO.27 In deciding Mr Hawkins did not qualify for preventive detention, Keane J reiterated the possibility of an ESO.28
[77] Unfortunately, Mr Hawkins has not undergone treatment for sexual offending. He also has shown unreliable compliance with taking his psychoactive medication even in the managed prison environment.
25 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [52].
26 At [10].
27 At [15].
28 At [25], [47] and [55].
[78] Mr Hawkins’ mental health and impaired impulse control characteristics leave him at risk of sexual offending in the future. The risk may be occasional, but it is nevertheless present. I consider that Mr Hawkins presents a high risk of committing a relevant sexual offence in the future. I conclude that the pre-requisites for making an ESO have been established.
[79] Section 107I(2) is framed in a way that leaves the Court with a discretion to make an order. As Downs J said in Chief Executive, Department of Corrections v Popata, it would be exceptional not to make an order when the criteria had been established.29 Statutory powers must be exercised in conformity with the purpose that the provision serves in the statutory scheme. Here, the mandated criteria set a high threshold and the purpose of an ESO is to protect members of the community. I am satisfied that I should make an ESO.
Duration of the order
[80] I am now required to consider the duration of the ESO. The Chief Executive seeks an ESO for five years. Mr Eagles did not take issue with the term of the order, but I must determine the minimum period required for the purposes of the safety of the community in light of:30
(a)the level of risk posed by the offender; and
(b)the seriousness of the harm that might be caused to victims; and
(c)the likely duration of the risk.
Level of risk
[81] As set out above at [69], Mr Bauer concluded there is a very high risk that Mr Hawkins will engage in relevant sexual offending within ten years of release.
29 Chief Executive, Department of Corrections v Popata [2017] NZHC 2343 at [57].
30 Section 107I(5).
Seriousness of harm that might be caused to victims
[82] Each of Mr Hawkins’ victims has been a young and vulnerable female. The seriousness of the harm, particularly emotional harm, that might be caused to such persons in the event of further serious sexual offending is self-evident.
Likely duration of risk
[83] Mr Hawkins’ VRS-SO Pre-treatment score refers to both the estimated sexual recidivism rate after five years and ten years. I am satisfied there are good reasons why the Chief Executive seeks an ESO for five years rather than the maximum of ten years:31
(a)the duration must be the minimum period required for the purposes of the safety of the community;
(b)Mr Hawkins has not yet been monitored in the community environment;
(c)Mr Hawkins may be able to reduce his risk with treatment;
(d)Mr Hawkins is 58 years old and his risk profile may reduce with age; and
(e)the Chief Executive can apply for a further ESO in future if required.
[84] These same factors are relevant to determining whether five years is the minimum term required for the purposes of the safety of the community. The Chief Executive submitted that five years would allow time for Mr Hawkins to be supervised and managed, and for him to be given adequate treatment and support, to ensure his risk of re-offending is reduced. The Chief Executive submitted that if Mr Hawkins forms the view that his risk has reduced, and obtains evidence to support that view, it
31 Section 107I(4).
will be open to him to apply to the Court to cancel the remaining term of the ESO.32 Even so, that is not a reason to make an ESO for a longer term than is required.
[85] Some of Mr Hawkins’ risk factors are inbuilt characteristics that mean he will never be completely free of the risk of sexual offending. However, the Act restricts ESOs to certain sex offenders who present a high risk of future serious sexual offending. Mr Hawkins may be able to reduce his risk of re-offending with a combination of treatment and support, particularly treatment specific to his sexual offending and sustained compliance taking his psychiatric medication.
[86] I consider that a term of four years should allow time for Mr Hawkins to be supervised and managed, and for him to be given adequate treatment and support, to ensure his risk of re-offending is reduced. If that does not eventuate, the Chief Executive can apply for a further ESO.
Conclusion
[87] I conclude that that a term of four years is the minimum period required for the ESO.
Result
[88] The application is granted. I make an extended supervision order in respect of Mr Hawkins under s 107I(2) of the Act. The term of the order is four years.
Gault J
32 Section 107M(1).
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