Chief Executive of the Department of Corrections v Joe
[2020] NZHC 351
•3 March 2020
ORDER PROHIBITING IDENTIFICATION OF COMPLAINANTS
PURSUANT TO S 203 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-2019-404-194
[2020] NZHC 351
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
KITIONA JOE
Respondent
Hearing: 31 October 2019 (supplementary submissions filed on 8 November 2019) Appearances:
B Charmley and L Sullivan for the Applicant J Grainger for the Respondent
Judgment:
3 March 2020
JUDGMENT OF GAULT J
This judgment was delivered by me on 3 March 2020 at 2:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Ms B Charmley and Ms L Sullivan, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City
Mr J Grainger, Public Defence Service, Auckland
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v JOE [2020] NZHC 351 [3 March 2020]
[1] The Chief Executive of the Department of Corrections applies for an extended supervision order (ESO) in respect of the respondent, Mr Joe, for a term of seven years under s 107I of the Parole Act 2002 (the Act). The grounds are that Mr Joe has a pervasive pattern of serious sexual offending, and there is a high risk he will commit a relevant sexual offence in the future. As required, the application was accompanied by a report from a health assessor,1 Ms Batley, a registered clinical psychologist.
[2] Mr Joe opposes the ESO being made. He disputes that there is a high risk that he will in future commit a relevant sexual offence. He relies on a report from another psychologist, Ms Isaacson. She disagrees with Ms Batley’s report in several material respects, including as to there being a high risk that Mr Joe will commit a relevant sexual offence in the future.
[3]Both Ms Batley and Ms Isaacson gave evidence at the hearing.
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, having considered the matters addressed in the health assessor's report as set out in section 107F(2A), that—
1 Section 107F(2). The report addressed the matters required by s 107F(2A).
2 Section 107A.
3 Section 107I(1).
4 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [4]. See also
Chief Executive, Department of Corrections v T [2017] NZHC 2179 at [13].
(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 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.
[7] 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.5 Statutory powers must be exercised in conformity with the purpose that the provision serves in the statutory scheme. The mandated criteria set a high threshold and the purpose of an ESO is to protect members of the community.
[8] 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
5 Chief Executive, Department of Corrections v Popata [2017] NZHC 2343 at [57].
(b)the seriousness of the harm that might be caused to victims; and
(c)the likely duration of the risk.
[9] 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. In addition, the Court may impose special conditions on an interim basis (pending imposition of conditions by the Parole Board).6 The standard conditions regulate the offender’s residential address, place of employment, rehabilitation and reintegration, and contact with young people, victims and other classes of persons if specified. Special conditions can include residential restrictions and electronic monitoring. Breaching the conditions is an offence punishable by imprisonment of up to two years.7
[10] 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
[11] Following the statutory framework and the Court of Appeal’s statement of the approach in Chief Executive, Department of Corrections v Alinizi,8 the issues for determination are as follows:
(a)Is Mr Joe an eligible offender under the ESO regime?
(b)Does Mr Joe have, or has he had, a pervasive pattern of serious sexual offending?
6 Section 107IA.
7 Section 107T.
8 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].
(c)Does Mr Joe meet the qualifying criteria set out in s 107IAA, listed above at [6]?
(d)Does Mr Joe present a high risk of committing a relevant sexual offence in the future?
Eligible offender
[12] There is no dispute that Mr Joe is an eligible offender sentenced to a finite term of imprisonment for a relevant sexual offence who has not ceased to be subject to release conditions.9 He was sentenced on 10 May 2013 to six years and five months’ imprisonment by Dobson J for sexual violation by unlawful sexual connection (x2), doing an indecent act on a boy under 12 and doing an indecent act on a boy between 12 and 16.10 They are relevant sexual offences.11
[13] Mr Joe was released on parole on 30 January 2019. He is subject to release conditions imposed by the Parole Board for six months from his sentence expiry date (9 October 2019). He will therefore cease to be subject to release conditions after 8 April 2020.
Pervasive pattern of serious sexual offending
[14] Mr Grainger, counsel for Mr Joe, accepts that Mr Joe has, or has had, a pervasive pattern of serious sexual offending. I nevertheless address this issue as I need to be satisfied in relation to this threshold requirement and as Mr Joe’s past offending is relevant to the predictive risk assessment.
Relevant offending
[15] Mr Joe has seven convictions for sexual offending. The first three convictions relate to the following offences committed between 1986 and 1990 for which he was
9 Sections 107B and 107C.
10 R v Joe [2013] NZHC 1047.
11 Section 107B(2)(a), (j) and (k).
sentenced to two years and three months’ imprisonment in the District Court in February 1991:12
(a)indecent assault on a boy under 12 in 1986; and
(b)indecent assault on a boy between 12 and 16 (x2) in 1989 and 1990.
[16] The other four convictions relate to the offences for which he was sentenced in 2013, referred to at [12] above. These four offences occurred between 2004 and 2012.
[17] The summary of facts for the 1986 to 1990 offending records that the victim was a young boy aged eight or nine, who was a neighbour. The 1986 charge involved Mr Joe (then aged 18 or 19) taking the young boy to his bedroom, lying on the bed and telling the victim that if he was allowed to kiss the victim he would give the victim a game. The victim said no. Mr Joe pulled the victim towards him and kissed the victim on the lips. The 1989 and 1990 charges (when Mr Joe was aged 22 to 23) related to regular offending every weekend for over a year against the same victim, then aged 12 to 13, that included Mr Joe kissing the victim on the lips and masturbating the victim. The background to this offending was that Mr Joe taught the victim to play poker, the victim lost a large amount of money to Mr Joe and Mr Joe told the victim that if he came over each week and had sex with him that he would reduce the amount owing.
[18] The summary of facts for the offending in 2004 to 2012 (when Mr Joe was aged between 36 and 45) records that the two victims were Mr Joe’s [ ], T and
B. In 2004, when T was 14, Mr Joe licked and sucked his testicles. In 2006, when T was 16, Mr Joe licked and kissed his penis and testicles. In 2007 to 2008, Mr Joe licked and sucked on his penis. In addition to these specific incidents, similar offending occurred regularly throughout the same four year period. This offending gave rise to a representative charge of sexual violation by unlawful sexual connection.
[19] Between September 2005 and September 2007, when B was aged 9 or 10, Mr Joe stimulated B’s penis with his hand (indecent assault). Between September
12 R v Joe DC Ōtāhuhu S1/91, 8 February 1991.
2009 and March 2012, when B was aged 13 to 15, Mr Joe indecently assaulted B in the same way on approximately seven or eight occasions.
[20] Between September 2009 and September 2010, when B was aged 13, Mr Joe sucked on B’s penis. Between that incident and December 2011, when B was aged 13 to 15, Mr Joe did so on a further three or four occasions. This offending gave rise to the second representative charge of sexual violation by unlawful sexual connection.
Serious sexual offending
[21] Serious sexual offending is not defined in the Act and falls to be interpreted by reference to its ordinary meaning viewed against the purpose of this part of the Act.13 Here, the sexual offending was serious. Sexual violation is the most serious type of sexual crime. The indecent assaults also had aggravating features.14 The first isolated offence in 1986 is less serious considered on its own as it did not involve contact with private parts, but it featured inducement.
Pervasive pattern
[22] I consider Mr Joe has had a “pervasive pattern” of offending against young boys. This Court has interpreted this requirement as not imposing a particularly high threshold.15 Nevertheless, I note the definition of ‘pattern’ is “an arrangement or order discernible in objects, actions, ideas, situations etc”,16 and also 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”.17
[23] I acknowledge the significant gap between the two sets of offending from 1990 to 2004 but I do not consider this negates a pervasive pattern. Indeed, it may be said that Mr Joe has had a pervasive pattern based on the 2004 to 2012 offences alone. In any event, I am satisfied, viewing his offending collectively, that Mr Joe has had a
13 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [44].
14 See Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298 at [40]-[44].
15 Chief Executive, 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].
16 Shorter Oxford English Dictionary (6th ed, Oxford University Press, 2007).
17 Shortcliffe v Chief Executive of the Department of Corrections [2016] NZCA 597 at [31], fn 23. See also Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [37].
pervasive pattern of serious sexual offending notwithstanding the gap between the two sets of offences. The extent of offending (including representative charges) and its similarity (all involving boys under 16 and all except the 1986 offence involving stimulating the victim’s penis by hand or mouth) lead me to conclude that Mr Joe has had a pervasive pattern of serious sexual offending.
Does Mr Joe meet the qualifying criteria set out in s 107IAA?
[24] Before dealing with the specific criteria required to be addressed by the health assessor and the Court, I should refer to Mr Joe’s background and the issues that have confronted him.
[25] Mr Joe is of New Zealand and Cook Island Māori descent. He was subject to a whāngai arrangement at birth within his maternal family. He was spoiled and developed beliefs of entitlement. At age eight he was periodically sexually violated by a teenage family member. He became isolated and also became overweight. He left school at age 15 without formal qualifications due to feeling embarrassed because of his weight, reading difficulty and loneliness. He had labour type work at the freezing works from age 16 to 18 but when the plant closed down he stayed home on the benefit, engaged in comfort eating and increased his weight further. At age 20 he was diagnosed with diabetes and other health complications due to obesity. In 2012 (aged 44 to 45) his leg was amputated.
[26] As a teenager he realised he was gay but typically denied it. He has not had any stable intimate relationships. He has not gained independence as an adult; he remained living in the family home. Following his release on parole in January 2019, he resided in supported accommodation with People At Risk Solutions. Mr Joe is now aged 52.
[27]I turn to the qualifying criteria set out in s 107IAA.
Does Mr Joe display an intense drive, desire, or urge to commit a relevant sexual offence?
[28] As Ms Charmley submitted for the applicant, the Court of Appeal in Alinizi has confirmed that “displays” in this context means that the relevant traits and behavioural characteristics must be currently possessed or present but does not import a requirement that they must be externally manifested at the time of application.18
[29] Also relying on the Court of Appeal’s judgment in Alinizi, Ms Charmley submitted that an intense drive, desire, or urge to commit a relevant sexual offence will be present “where there is nothing to suggest that such a trait formerly present no longer subsists”.19
[30] Ms Charmley acknowledged that, although Mr Joe was not able to complete the Kia Marama group treatment programme due to lack of wheelchair access and through no fault of his own, he completed 25 individual treatment sessions with a departmental psychologist from March 2017 until October 2018, so has done things to address his offending. The treating psychologist, Mr Louw, described Mr Joe’s participation positively and reported to Ms Batley that Mr Joe appeared motivated despite having difficulty discussing his offending and reportedly tending not to complete between session tasks. Notwithstanding that positive participation, Ms Batley considered that Mr Joe has demonstrated an intense drive, desire, or urge to commit a relevant sexual offence, particularly when the circumstances would afford ease of victim access. Ms Batley considered that any treatment gains are likely to remain limited, recent, and untested outside the prison setting.
[31] Ms Isaacson offered insight into Mr Joe’s offending, describing him as having an avoidant rather than active sexual offending pathway – intimacy deficit rather than deviant sexual scripts. She emphasised the circumstances of Mr Joe’s offending against children known to him, and considered that he is reported to have developed adequate insight and a safety plan. She considered Mr Louw’s treatment to be appropriate given Mr Joe’s early sexualisation, intimacy deficit and cognitive
18 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [26]-[27].
19 At [36].
distortions. She concluded that he does not currently display an intense drive, desire, or urge to commit a relevant sexual offence.
[32] Ms Charmley acknowledged that my assessment in relation to this criterion depends on whether I prefer the evidence of Ms Batley or Ms Isaacson as to whether Mr Joe’s treatment has effectively mitigated this trait. But ultimately, I must make my own finding having considered the health assessors’ reports and evidence.
[33] Both experts are registered clinical psychologists with experience in relation to sexual offenders. Ms Batley qualified as a registered clinical psychologist in 2014. She has worked for the Department of Corrections since December 2015. She has worked with child sexual offenders but was not able to say how many. Ms Isaacson was registered as a full clinical psychologist in 2005. After time at the Mason Clinic, she worked at the Department of Corrections and then Serco from 2008 to 2016 before going into private practice, so she has over 15 years’ experience in the Corrections and Forensic Mental Health field, including considerable experience with high risk child and adolescent sexual offenders. Both experts spent some hours interviewing Mr Joe.
[34] I accept Ms Batley’s evidence that Mr Joe has in the past demonstrated an intense drive, desire, or urge to commit a relevant sexual offence. That is so notwithstanding that his offending has been against children known to him and may have been curtailed by his lack of mobility. But the issue is whether he still displays that trait notwithstanding treatment, acknowledging that it need not be externally manifested at the time of application. Ms Batley acknowledged in cross-examination that her conclusion is based largely on Mr Joe’s history of offending and she is not necessarily suggesting that he displays that characteristic now. That is a material concession.
[35] As Ms Batley says, Mr Joe’s treatment gains are relatively recent – but that does not necessarily mean they are not real, especially when the treatment has been only recent through no fault of Mr Joe’s. Even if he had not been prevented by his disability from attending the group programme, it was accepted this would likely have been near the end of his sentence.
[36] I do not accept that Mr Joe has to be presented with opportunity to offend such as victim access before it can be said that his previous intense drive or urge no longer exists. The treatment gains have been tested outside of the prison setting as Mr Joe has been released since January 2019 – although he has been subject to release conditions and therefore supported by the Department of Corrections. In that sense, they remain untested in an unsupported environment.
[37] My main concern in relation to this criterion is whether the treatment gains are limited as Ms Batley considers so as not to displace the trait evident in the past. Mr Louw’s report indicates that Mr Joe made progress during treatment – the most significant shift involved decreased cognitive distortions that minimised and justified his offending. This indicates progress with insight. Mr Joe also developed a safety plan. But I consider Ms Batley fairly described the gains as limited. As she explained, Mr Joe undertook 25 hours of individual treatment compared with approximately 315 hours of group and individual treatment if he had completed the group treatment programme. Mr Louw said Mr Joe’s engagement fluctuated and explaining his safety plan without prompts remained a challenge for him. Mr Louw considered it was imperative that Mr Joe continue to learn his safety plan in a way that would enable him to communicate it simply to others.
[38] While Ms Isaacson concluded that Mr Joe does not currently display an intense drive, desire, or urge to commit a relevant sexual offence, she was appropriately diffident in relation to the treatment gains, saying that Mr Joe is reported to have developed adequate insight and a safety plan. That indicates reliance on Mr Louw’s report. Overall, I consider that the level of insight and extent of the treatment gains are not yet sufficiently clear to conclude that the intense drive, desire, or urge to commit a relevant sexual offence present at the time of Mr Joe’s offending is no longer present. Therefore, on balance, I am just satisfied that Mr Joe displays an intense drive, desire, or urge to commit a relevant sexual offence.
Does Mr Joe have a predilection or proclivity for serious sexual offending?
[39] Both experts agreed that Mr Joe has a predilection or proclivity for serious sexual offending. Given his offending history against boys under 16, I am also satisfied in relation to this criterion.
Does Mr Joe have limited self-regulatory capacity?
[40] Ms Batley acknowledged that there is little evidence of impulsivity but considered that Mr Joe experienced difficulty regulating sexual impulses, reporting that he had found victim resistance sexually arousing at times and indicating that ease of victim access primarily facilitated his offending. She also acknowledged that self-regulatory capacity is indicated by his compliance with community oversight/prison rules and a lack of observed sexual offending paralleling behaviours in prison – although his preferred victim profile is not likely to be available in the prison setting. She considered that Mr Joe tended to under-control emotion and that this contributed to impaired self-regulation of sexual impulses when combined with a high sense of entitlement and difficulty engaging in age appropriate intimate relationships.
[41] Ms Batley acknowledged that Mr Joe has engaged positively in treatment and described alternative strategies that would likely assist him to self-regulate negative emotionality – but he has not had the opportunity to demonstrate the ability to generalise these skills in the community setting. In her updated report, she accepted that Mr Joe had, since her earlier report, had some opportunity to demonstrate self-regulatory behaviour in the community setting, albeit with professional oversight and support.
[42] Overall, Ms Batley considered that Mr Joe is likely to have impaired self-regulatory capacity in the absence of being able to demonstrate it without professional oversight offered currently by probation services. She considered he seemed very reliant on professional support, and had very limited community or other personal support that might be effective for him in relation to self-regulatory capacity.
[43] Ms Isaacson’s opinion was that Mr Joe does not present with impaired self-regulatory capacity. Rather than impulsive, she considered that his pattern of sexual offending was largely planned and groomed through inducements and threats. Referring to Mr Joe’s early childhood experiences and consequential obesity, she considered that his sexual offending and fraudulent offending seemed to parallel periods of poor self-regulation in coping with negative emotional states despite dire consequences.20 However, she noted he was able to manage his deviant sexual impulses within the community for a period of 12 years before reoffending.
[44] Mr Joe has clearly demonstrated limited self-regulatory capacity in the past, notwithstanding the gap between his two sets of sexual offending. But the question is whether his self-regulatory capacity is limited now. That is not evident when he is professionally supported and he appears to have demonstrated some ability to utilise professional support since his release, but I need to consider whether there remains an underlying lack of self-regulatory capacity at least in the absence of such support. Again, this depends on an assessment of Mr Joe’s treatment gains. Having concluded they are limited, I consider, on balance, that Mr Joe still has limited self-regulatory capacity.
Does Mr Joe display either or both of:
ž a lack of acceptance of responsibility or remorse for past offending:
ž absence of understanding for or concern about the impact of his sexual offending?
[45] The Court of Appeal has stated the Court must be satisfied the respondent has an absence of understanding; the respondent is not required to show a complete understanding.21 I consider this applies equally to the lack of acceptance of responsibility or remorse. As Ms Charmley acknowledged, it is a question of degree having regard to the statutory purpose of mitigating risk.
[46] Dealing first with acceptance of responsibility or remorse for past offending, Ms Batley acknowledged that Mr Joe has evidenced a gradual yet significant shift during treatment towards accepting increased responsibility for his offending and expressing some empathy for the victims. She referred to his expressions of remorse
20 This reference to fraudulent offending was to a bout of 23 offences in 1997 to 1998.
21 P v Chief Executive of the Department of Corrections [2018] NZCA 599 at [49].
but noted that he appears to have a strong sense of entitlement to have his needs met at the expense of others, which may contribute to him having difficulty articulating or experiencing genuine remorse. She concluded that while Mr Joe verbalises acceptance of responsibility and sentiments of remorse for his offending, the depth and genuineness of such remorse and level of self-responsibility remain unclear. In her opinion the evidence seems mixed and Mr Joe’s verbalisation of responsibility and remorse is very recent. She referred again to the treatment being recent and treatment gains untested outside the prison setting.
[47] In her updated report, Ms Batley reported that Mr Joe has acknowledged during his current treatment that a history of low self-esteem contributed to his offending. She considered that, when combined with his reported compliance with conditions to date and references to a safety plan, these factors may reflect acceptance of responsibility but also that it appears he remains largely focused on his needs in relation to his reintegration. Mr Joe had indicated that he wished to reconcile with the families of his victims and seek forgiveness, and the treating psychologist had considered that the primary motivation was to restore family relationships and support systems, rather than remorse or concern for his victims.
[48] Ms Isaacson considered that prison records indicated that Mr Joe accepted responsibility for his sexual offending. He had struggled to express remorse but since engaging in treatment, he has been recognised for developing insight into the harm his sexual offending caused and identifying his responsibility to manage his impulses and high risk situations. Probation notes detail that Mr Joe has consistently expressed motivation to desist from future offending. Ms Isaacson concluded that Mr Joe has accepted full responsibility and displayed genuine remorse for past sexual offending. She reported that, at interview, his sense of personal responsibility was somewhat passive although his expressed remorse and regret appeared genuine.
[49] Ms Charmley submitted there is mixed evidence and it appears Mr Joe’s acceptance of responsibility and remorse remain superficial. She acknowledged Mr Joe’s positive progress in treatment to date but submitted he requires ongoing treatment and oversight to reach the point where he fully accepts responsibility and displays genuine remorse for his offending.
[50] Given that Ms Isaacson considered Mr Joe has accepted full responsibility and displayed genuine remorse, and Ms Batley said that the depth and genuineness of such remorse and level of self-responsibility remained unclear, I am not prepared to conclude that Mr Joe’s indications of accepting responsibility and of remorse are not genuine. The remaining issue is whether his indications go far enough or whether a lack of acceptance of responsibility or remorse remains.
[51] I accept Ms Batley’s concern that in some respects Mr Joe still appears self- focused but, in context, I do not consider that indicates a lack of acceptance of responsibility or remorse. Mr Joe’s motivation for reconciliation with the families of his victims may be to restore family relationships and support systems. That may be partly self-focused but I agree with Ms Isaacson that it does not negate his acceptance of responsibility or remorse. Also, there is no suggestion he is seeking to place himself in a high risk situation.
[52] In relation to the “mixed evidence”, Ms Charmley acknowledged this is not a case involving behaviour that undermines expressions of remorse. Ms Batley seemed to acknowledge in oral evidence that it is mainly Mr Joe’s history which throws some doubt on his expressed remorse. I note that the Department of Corrections report of another registered clinical psychologist, Mr Membery, for the Parole Board in October 2018 stated that Mr Joe displayed appropriate remorse and empathy for his offending actions and victims as evidenced through discussions. He displayed some insight into his precipitance and inability to manage his sexual urges, substance use and a lack of consequential thinking contributed to his offending. Mr Joe reflected that he felt guilt and shame as he had caused his victims to experience the same psychological pain that he experienced as a child through being sexually abused. Ms Batley stated that the Parole Board reports are more general and more focused on risk and release planning, whereas her report specifically was asked to focus on the s 107IAA criteria. Therefore, she assessed remorse more comprehensively. That may be so, but I consider the preponderance of evidence indicates that Mr Joe does now accept responsibility and have remorse for his offending in a sufficiently meaningful way.
[53] Overall, I am not satisfied that Mr Joe displays a lack of acceptance of responsibility or remorse for past offending.
[54] Turning to understanding for or concern about the impact of his sexual offending, Ms Batley considered that Mr Joe’s offending reflects a lack of concern for his victims due to the manipulation, inducements and threats used over a long period. She acknowledged that he appears to have gained insight into the impact of his sexual offending on the victims subsequent to engaging in treatment but considered he may tend to minimise or over-simplify his offending. She said it was difficult to ascertain whether this reflected a lack of insight or shame and/or culturally informed beliefs referring to sexual matters, particularly with a female assessor, but nevertheless he expressed some concern and empathy for the victims during the assessment. She acknowledged he appeared to have a clear understanding of the need to adhere to his safety and relapse prevention plans and specifically to seek support to cope with high risk situations. Ms Batley concluded that Mr Joe has gained some understanding for the impact of his sexual offending on his victims but any treatment gains in this regard are recent and limited to the prison setting.
[55] In her updated report, Ms Batley acknowledged that Mr Joe appeared to have an understanding of the need to identify potential high risk situations and a need to seek support should he experience lifestyle stresses, but continues to have limited personal and community support. She said that Mr Joe seemed vague when referring to the impact on the victims of his offending should he attend a family occasion where they may also be present, appearing more concerned about the likely disapproval of their mother and reflecting that it was the victim’s choice and that he was unsure how he would manage this. In this context too, she considered that his self-report that he is seeking forgiveness from his family seems primarily focused on his needs, rather than a reflection of understanding for, or concern about, the impact of his offending on his victims. She maintained her opinion in relation to this criterion, except that she acknowledged that Mr Joe appears to have evidenced compliance with, and consideration of, his safety plan over a brief period of time in the community while subject to oversight and remaining in supported accommodation.
[56] Ms Isaacson considered that Mr Joe has a good understanding of and evidences genuine concern about the impact of his sexual offending on actual and potential victims and himself. She noted he expressed sadness that his victims likely hated him for what he had done and acknowledged they would suffer longstanding
consequences. She also referred to Mr Louw’s report as indicating a shift in Mr Joe getting to understand the harm he had caused.
[57] Ms Charmley acknowledged Mr Joe’s recent positive progress in treatment but submitted that his insight into the impact his offending has had on his victims remains limited. She submitted that he appears to be largely focused on the damage his offending has caused to familiar relationships and his own support structures, rather than the impact on the victims personally. She submitted that Mr Joe has not displayed sufficient understanding or concern for his victims such that behavioural and psychological checks will prevent him from reoffending in the future.
[58] As indicated, the recency of Mr Joe’s treatment is not his fault. I accept Ms Batley’s evidence that at times Mr Joe appeared vague or required prompting around aspects of his safety plan. Mr Louw indicated this. But I do not infer from any remaining difficulty articulating the detail of his safety plan that Mr Joe displays an absence of understanding for or concern about the impact of his sexual offending. Mr Louw did not suggest that.
[59] Ms Batley explained in evidence that her statement in her updated report that Mr Joe had an “intellectual understanding” of his safety plan meant that Mr Joe did not seem to appreciate the impact of some of his reintegration goals potentially on the victims. She would have expected him, when verbalising his reintegration plans, perhaps to volunteer how that may impact on his victims and how he would intend to manage that potential risk or potential impact on him. But again I do not infer from this an absence of understanding for or concern about the impact of his sexual offending. Ultimately, Ms Batley acknowledged that Mr Joe has gained some understanding of the impact of his sexual offending on his victims.
[60] Taking into account the various reports and the oral evidence, including Ms Batley’s acknowledgements, I accept Ms Isaacson’s evidence that Mr Joe now has a good understanding of and evidences genuine concern about the impact of his sexual offending. I am not satisfied that Mr Joe displays an absence of understanding for or concern about the impact of his sexual offending.
[61] These two limbs of s 107IAA(1)(d) are alternatives but I have concluded that neither is satisfied in this case.
Conclusion
[62] Accordingly, I conclude that not all the qualifying criteria in s 107IAA are satisfied. In those circumstances, I cannot be satisfied that there is a high risk that Mr Joe will in future commit a relevant sexual offence under s 107I(2)(b)(i) and therefore may not make an ESO.
[63] Nevertheless, in case I am wrong about the qualifying criteria, it may be helpful if I address my risk assessment.
Does Mr Joe present a high risk of committing a relevant sexual offence in the future?
[64]Here too, the experts differed.
[65] In evaluating the risk that Mr Joe would commit further relevant sexual offences, Ms Batley applied three different risk assessment tools:
(a)RoC*RoI: an actuarial risk measure developed for the Department of Corrections to assist in the production of an offender’s risk of reimprisonment, which is based on static predictors (unchangeable by individual effort) from criminal history information.
(b)The Automated Sexual Recidivism Scale – Revised (ASRS-R): a brief actuarial static risk screening instrument designed to estimate the likelihood of further convictions for sexual offences among offenders who have already been sentenced in the District Court or High Court for a sexual offence, which is electronically generated from the offender’s official criminal record.
(c)The Violence Risk Scale – Sexual Offender Version (VRS-SO): a tool developed specifically for use with sexual offenders, designed to integrate information relating to risk assessment, treatment planning,
and changes in risk as a result of treatment, which includes both static factors, such as gender and convictions, and also dynamic risk factors that are amenable to change.
[66] Applying the RoC*RoI, Ms Batley assessed Mr Joe as being at low risk of reimprisonment within five years. Applying the ASRS-R, Ms Batley assessed Mr Joe as being at medium-low risk of further sexual offending. Applying the VRS-SO, Ms Batley assessed Mr Joe as being at high risk of reoffending (at the lower end of the high risk category – she acknowledged in cross-examination she scored Mr Joe at the very bottom of the high risk band). Overall, using this multi-method assessment, Ms Batley considered there is a high risk of Mr Joe committing a further relevant offence while in the community. She elaborated that should he reoffend, it is likely to be against a pre-pubescent or pubescent male (or possibly female) who is either related or known to him and be premeditated, with the use of grooming behaviours as well as threats and inducements to assist him maintain victim access and compliance.
[67] Ms Isaacson applied the Static-99R (on which ASRS-R is substantively based) and VRS-SO methods. She explained that Static-99R is internationally recognised as the best validated actuarial measure of static risk for sexual offending – it is considered the international gold standard for assessment of sexual recidivism risk. Ms Isaacson considered that combining Static-99R with the VRS-SO dynamic risk factors performs better than using the VRS-SO static and dynamic risk factors only.
[68] Applying Static-99R, she assessed Mr Joe as being of above average risk. Applying VRS-SO, she assessed Mr Joe as being of average risk. Overall, also using the multi-method assessment, Ms Isaacson considered Mr Joe presents with an above average (medium-high) risk of sexual reoffending.
[69] Ms Isaacson also noted that Mr Membery of Corrections had assessed Mr Joe as medium-high risk in October 2018. Ms Batley explained that the difference between her conclusion and Mr Membery’s merely reflected the fact that she had used an updated VRS:SO manual and that they were not very far apart even though she was in the lower end of high risk.
[70] It is necessary to address two respects in which the experts differed in their application of VRS-SO. First, it emerged in evidence that a difference between the experts’ application of a static component of VRS-SO was that Ms Isaacson characterised Mr Joe with a child victim profile, whereas Ms Batley characterised him as a mixed offender because his victims included persons aged 14 or above. This follows a 2017 clarification in the scoring rules, changing from sex offender type to sexual offence victim profile. Characterising Mr Joe as a mixed offender results in a slightly higher score. Ms Isaacson acknowledged that with one unrelated and one related victim aged 14 when Mr Joe first offended against the victim, that would technically categorise Mr Joe as a mixed adult/teen and child offence victim profile. She said, however, that given the continuity of under-age males, the author of VRS-SO has suggested that Mr Joe could also be classified as having a child victim profile. This results in a two point score difference. Ms Isaacson did not dispute that Ms Batley’s VRS-SO static assessment was technically correct – in aggregate they were only a point apart – but as indicated Ms Isaacson favoured using Static-99R rather than the VRS-SO statics in her overall risk parameter.
[71] Secondly, there was also a difference between the experts in relation to the description of the risk bands applying VRS-SO. Ms Isaacson preferred to use the new risk categories in the 2017 manual, which she explained are used not only in VRS-SO but also in Static-99R, whereas Ms Batley said the Department of Corrections had chosen not to use the new category descriptions, which she considered involved changing the way risk was communicated rather than the risk itself. The description changes are as follows:
Previous risk labels Total score Low 0-20 Moderate-low 21-30 Moderate-high 31-40 High 41-72
2017 risk labels Total score Very low 0-14.5 Below average 15-24.5 Average 25-39.5 Above average 40-49.5 Well above average 50-72
[72] I accept that Ms Batley has adopted the 2017 clarification in the scoring rules but not the new risk category descriptions, and that Department policy is not itself a sufficient reason for continuing to use the earlier descriptions when the 2017 manual has changed them.
[73] However, the disadvantage of the new descriptions is that they do not neatly align with the need for a high risk of committing a relevant sexual offence in the ESO regime. The new descriptions, which Ms Isaacson explained were based on updated international normative data indicating that sexual recidivism is declining, essentially split the high risk category into two sub-categories of above average risk and well above average risk, albeit that the lowest score for above average is one point below the score for high under the previous categorisation (apparently as a consequence of the treatment of half marks). Neither expert suggested that lowering the cut-off by one point between the re-labelled categories was significant, nor that the re-labelling in VRS-SO had any particular relevance to my assessment of high risk in terms of the Act. Using the new descriptions, a well above average VRS-SO score and even an above average score (at least above 40, the bottom of the category) corresponds to the previous high risk score. A score of 40 at the bottom of the new above average category would have been at the top of the previous moderate-high category.
[74] While I need to understand the different descriptions used by the two experts, I need not determine how the VRS-SO risk categories are best described. The Court ultimately must assess whether the risk of committing a relevant sexual offence is high as required by the Act, not according to VRS-SO or another assessment tool. As Heath J said in Bradbury (No 2), care must be taken that the available actuarial tools align sufficiently with the mandated statutory criteria.22 The Court is assisted by
22 Chief Executive of the Department of Corrections v Bradbury (No 2) [2016] NZHC 2816 at [35].
assessors addressing whether the risk is high as required by the Act, whichever risk category labels are adopted in relation to VRS-SO. Ms Batley acknowledged that when she expressed her opinion that the risk is high, she meant high as understood within that (VRS-SO) categorisation. In considering the experts’ risk assessment as part of my own assessment of the level of risk, I focus on their overall evidence rather than the VRS-SO category labels.
[75] In relation to the dynamic factors, Ms Isaacson scored Mr Joe lower than Ms Batley. One aspect was measuring change given that Mr Joe was in a custodial environment and then in supported accommodation. Ms Isaacson did not agree with Ms Batley’s initial assessment of sexual deviant lifestyle being at the highest level and then giving no discount for treatment. Also, one of the VRS-SO dynamic risk factors is insight. Ms Batley scored Mr Joe towards the high end. Given the mixed evidence in relation to Mr Joe’s level of insight reflected in my discussion of the two limbs of s 107IAA(1)(d) above, I consider that a lower score could well have been appropriate, which Ms Batley accepted would put him in the lesser band.
[76] Following counsel’s submissions about the differing risk category terminology, a difference arose as to the meaning of “high risk” in the Act. Mr Grainger submitted that “high risk” meant compared with other sexual offenders, that is above average, whereas Ms Charmley submitted no such comparison is required. I gave leave for the parties to file supplementary submissions. Ms Charmley did so, referring to the statutory purpose in s 107I(1) and the Court of Appeal’s reference in Wharton to its earlier observation in Belcher, that risk be “both real and ongoing and one that cannot sensibly be ignored having regard to the nature and gravity of the likely reoffending”.23 I also bear in mind that, at the time Belcher was decided, s 107I of the Act required the Court to be satisfied that the offender was “likely” to commit a relevant offence whereas now the Court must be satisfied a “high risk” exists. But I do not consider that the “high risk” test involves a comparison
23 Wharton v Chief Executive of the Department of Corrections [2019] NZCA 320 at [14]; Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) at [11].
with other sex offenders. The test requires an individualised assessment of risk.24 Ultimately, the decision-making exercise is fact-specific and evaluative.25
[77] Stepping back, I consider that the professional treatment undertaken by Mr Joe in custody and subsequently, including his acknowledgement of the impact of his offending, development of a safety plan and adherence to it following his release, has lessened his risk of reoffending. Overall, irrespective of the category labels, I am more persuaded by Ms Isaacson’s professional assessment of Mr Joe’s level of insight into his offending following treatment and interview, and the overall level of risk. I am not satisfied there is a high risk that Mr Joe will in future commit a relevant sexual offence.
[78] I also note that Mr Joe is registered as a child sex offender and therefore has a police case manager to provide oversight and monitoring. Ms Batley accepted that is a professional support. Mr Joe would have to report to police if he were to live with a child or become involved with an organisation that includes children, which would be obvious risk factors. Without suggesting that is the same as the position under an ESO, where a person cannot have contact with a child without the prior approval of a probation officer, it is a protective factor relevant to the risk assessment.26 As Ms Charmley submitted, the degree of oversight by a probation officer under an ESO would be much greater. When asked whether Mr Joe required the additional oversight of an ESO, Ms Batley said that in her opinion he would benefit from it. However, I have indicated that the threshold for making an ESO is high, reflecting the severe restrictions that it places on many facets of the recipient’s life.27 Perceived benefit to the offender is not a substitute for the high risk of reoffending threshold.
[79]I conclude that the pre-requisites for making an ESO have not been established.
Duration of the order
[80] Even if an order were appropriate, I consider the minimum period required for the purposes of the safety of the community having regard to the statutory factors
24 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [52]; and Chief Executive of the Department of Corrections v Bradbury (No 2) [2016] NZHC 2816 at [34].
25 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [21].
26 Wharton v Chief Executive of the Department of Corrections [2019] NZCA 320 at [37].
27 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [4].
would be considerably less than seven years.28 That period should be the minimum required for Mr Joe’s treatment gains to be confirmed and enhanced to ensure his risk of re-offending is no longer high. I consider two years would have been the minimum period required.
Result
[81]The application is dismissed.
Gault J
28 Parole Act 2002, s 107I(5).
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