Chief Executive of the Department of Corrections v Livingstone
[2014] NZHC 138
•12 February 2014
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2013-441-31 [2014] NZHC 138
BETWEEN THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Applicant
ANDDANIEL LIVINGSTONE Respondent
Hearing: 5 February 2014
Counsel: J D Lucas for Applicant
Respondent in person
Judgment: 12 February 2014
JUDGMENT OF THE HON JUSTICE KÓS
[1] Mr Livingstone raped a 10 year old girl in April 2006. He pleaded guilty promptly. His principal mitigation was intoxication. He was sentenced in the High Court to eight years’ imprisonment for sexual violation by rape, five years’ imprisonment for abduction, and three years for threatening to kill, served concurrently. Mr Livingstone is due to be released on 4 April 2014.
[2] The Department of Corrections applies for imposition of a 10-year extended supervision order (ESO) upon Mr Livingstone’s release. Should an ESO be imposed? If so, for how long?
Non-represented respondent
[3] Before the hearing the Crown’s Mr Lucas explained to Mr Livingstone the nature of the orders sought. I did so at the hearing also. We both explained that he had the right to free legal representation. We also explained that such representation
was available within the Napier courthouse that morning. Alternatively, an
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v LIVINGSTONE [2014] NZHC 138 [12 February 2014]
adjournment would be granted to enable advice to be taken at greater leisure. Despite that advice Mr Livingstone said that he understood the nature of the orders sought, did not oppose their being made, and that he wished the matter to be dealt with then and there.
Statutory framework
[4] The Parole Act 2002 governs the imposition of ESOs. An ESO may be imposed against “eligible offenders” – individuals who have been sentenced to a finite prison term for a relevant offence, and are still serving that sentence.1
Relevant offences include sexual violation where the victim was under 16 at the time of the offence, and abduction for the purposes of sexual connection where the victim was under 16 at the time of the offence.2
[5] The purpose of an ESO is to protect members of the community from those who, following receipt of a determinate sentence, still pose a real and ongoing risk of committing sexual offences against children or young persons.3
[6] The Court may make an extended supervision order if it is satisfied, having considered the matters in the health assessor’s report, that the offender is likely to commit any of the relevant offences referred to under section 107B(2) upon ceasing to be an eligible offender.4 The term of the order must reflect the minimum period required for the purposes of the safety of the community in light of the risk posed by the offender, the seriousness of potential harm caused to victims, and the likely duration of the risk.5 ESOs may not exceed 10 years.6
[7] Section 107JA sets out standard conditions for ESOs. These include reporting to a probation officer as required, obtaining written consent from a
probation officer before selecting or changing residential address or employment,
1 Parole Act 2002, s 107C.
2 Section 107B(2).
3 Section 107I(1).
4 Section 107I(2)
5 Section 107I(5).
6 Section 107I(4).
and restrictions on association with those under 16 or victims. In addition other special conditions may be imposed by the Parole Board.7
[8] In Barr v Chief Executive of Department of Corrections the Court of Appeal discussed the weight a judge must give to the various competing factors in any decision to impose an ESO.8 A Court must be wary of merely rubber-stamping the health-assessor’s report. The decision must be approached broadly:9
[I]t is for the judge to make up his or her own mind after hearing all the evidence and considering all the statistical, historical and current circumstances to decide whether the pre-condition for making the order exists.
Health assessor’s report
[9] A health assessor’s report, for the purposes of s 107F, has been prepared by a
registered psychologist, Mr N Morrison.
[10] Risk of relevant re-offending: Mr Livingstone’s risk of committing further relevant sexual offences upon his release into the community has been assessed as high. On the Automated Sexual Recidivism Scale (ASRS), Mr Livingstone is assessed as being in the medium-high risk category. On the STABLE-2007 scale, Mr Livingstone is assessed as being in the high risk group. STABLE items identified as problematic for Mr Livingstone include “significant social influences; capacity for relationship stability; hostility to women; general social rejection; impulsiveness; poor problem solving; negative emotionality; sex drive/preoccupation; deviant sexual preferences; and cooperation with supervision”.
[11] Nature of any likely future sexual offending by the offender, including the age and sex of likely victims: The assessor concludes that if Mr Livingstone is to commit further offences in the future, his offending is likely to be of a sexual nature against children and adolescents under the age of 16. The health assessor notes that Mr Livingstone’s likely victims will be pre-pubescent females who are unknown to
him, compromised by their age or vulnerability. Future offending is deemed likely to
7 Sections 107JA and 107K.
8 Barr v Chief Executive of Department of Corrections CA60/06, 20 November 2006.
9 At [24].
escalate to rape if Mr Livingstone has “exclusive access to the person for a sufficient period of time” to complete the crime. It is readily apparent to me that the educational, emotional and substance-abuse disadvantages under which Mr Livingstone labours means he has difficulty sustaining normal sexual relationships. His history suggests that too.
[12] The offender's ability to control his or her sexual impulses: Mr Livingstone has been assessed as having a high level of sexual preoccupation. And he has a poor ability to control his sexual impulses. His preoccupation and lack of control are aggravated by use of substances. The facts of the immediate offending indicate impulsiveness in response to his sexual urges. And a blatant disregard for consequences. That is shown by continuation of the act of rape despite his little victim’s palpable distress.
[13] The offender's predilection and proclivity for sexual offending: Although Mr Livingstone’s conviction history is lengthy for someone of his age, it is important to note that the offending for which he was imprisoned is his only conviction for sexual offending. The majority of his history relates to a multitude of driving and theft offences. He has acknowledged interest in coercive sexual activity in the past, but maintains that he no longer does so. Nonetheless, the assessor notes that the combination of his high-level sexual pre-occupation, and his poor control of sexual impulses, indicates “an elevated probability of an enduring predilection and proclivity for further sexual offending.”
[14] The offender's acceptance of responsibility and remorse for past offending: The assessor harbours doubts as to the sincerity of Mr Livingstone’s remorse and shame at his offending. The respondent acknowledges his crime, and admits that it has damaged his victim’s life. He also claims that he has taken responsibility and expressed remorse for his actions. But the assessor notes that Mr Livingstone continues to impute his offending to alcohol abuse and the fact that he was “just drunk”. He has not offered any other explanations for the reasons behind his offending. Or why he continued to offend despite the victim’s palpable distress.
[15] Any other relevant factors: During his incarceration, Mr Livingstone was enrolled in a preparatory program at the Te Piriti Special Treatment Unit in Auckland Prison to address his sexual offending. The program ran between 1 November 2010 and 29 June 2011. His participation and motivation were deemed unsatisfactory upon completion of the course. He is described as having been “detached and disinterested, only sporadically showing periods of motivation”. The assessor thus concludes that it is difficult to determine whether he has responded to the program or learned from it. Mr Livingstone describes attending Te Piriti STU as “hard”, but maintains that he benefited from its intervention, as it “allowed him to examine his thinking”. He responded more successfully to a later Drug Treatment Unit course.
[16] Conclusion of assessor: The assessor concludes that Mr Livingstone poses a high risk of recidivism upon release. Furthermore, the report states that individuals demonstrating Mr Livingstone’s assessed risk level maintain a stable risk for a lengthy period of time, and that the risk remains over a 10 year period. The assessor recommends that if an order is imposed, it should be for the maximum length permissible under the legislation – a total of ten years.
Is an ESO appropriate in this case?
[17] Having taken the psychologist’s recommendations into account, it is for the Court to determine whether an individual is likely to commit a relevant sexual offence under the Parole Act upon his or her release. In R v Peta, the Court of Appeal noted that the risk of offending must be real, ongoing, and one that cannot be ignored having regard to the nature and gravity of the likely reoffending. 10
[18] The Department submits that an ESO is necessary, arguing that Mr Livingstone is likely to commit a relevant offence following his release from prison.
[19] Mr Livingstone does not oppose its imposition. But I am still required to reach my own conclusion.
[20] In this case I am satisfied, in light of the assessor’s report, that an ESO should be imposed. First, I note the random brutality of the relevant offending, against a little girl. Secondly, I accept the assessment that Mr Livingstone presents a high risk of relevant offending, for the reasons recorded earlier in this judgment. Thirdly, there has been a lack of remorse and insight into the offending. There is more to what happened than just “being drunk”. Fourthly, Mr Livingstone’s participation in treatment programmes has been unsatisfactory. Finally, as he acknowledged himself when he addressed me, he lacks whanau support on release. He is apprehensive about what will become of him. So should we be, although it is clear Mr Livingstone is not without at least some decent values. Support will be critical to ensuring this single instance of sexual offending remains a unique error in his history.
[21] For these reasons this is an appropriate case for imposition of an ESO.
The appropriate length of an ESO
[22] In many cases where an extended supervision order has been imposed, the Court has opted for a maximum length of ten years. In Chief Executive of the Department of Corrections v Steven, the assessor noted that it was departmental policy to seek extended supervision orders for the maximum term.11 Allan J noted the assessor “would be reluctant to recommend anything less than 10 years, except in a case where a number of factors taken together clearly suggested that the risk of further offending was greatly diminished.”12
[23] The Court of Appeal in R v Peta noted that it is necessary for a Judge to determine the appropriate length of an ESO against the statutory criteria in s 107I(5) of the Parole Act 2002, in a separate exercise from the decision to impose an order.13
This section emphasizes the need to impose an order for the minimum period required for the purposes of the safety of the community in light of the level of risk posed by the offender, the seriousness of harm that might be caused to victim, and
the likely duration of the risk.
11 Chief Executive of the Department of Corrections v Steven HC Rotorua CRI 2004-463-130,
27 April 2005.
12 At [55].
[24] Cases where an ESO of ten years has been ordered have typically involved a recurring pattern of sexual offending. For example, the individuals in Chief Executive of the Department of Corrections v Webster14 and Chief Executive of the Department of Corrections v Subritzky15 offended against multiple victims over a period of time. In Barr v Chief Executive of the Department of Corrections, the
respondent offended against two victims within a short period of time, but in a similar way.16 In that case a four year ESO was upheld by the Court of Appeal, although it appears to have been considered light.
[25] In comparison, Mr Livingstone has been convicted of one instance of sexual offending, and his criminal history discloses no other similar offences. Consistency of approach with other cases cited requires recognition of the distinctive singularity of Mr Livingstone’s sexual offending. That necessitates a term of less than 10 years in my view.
[26] Mr Lucas accepted the logic of that analysis, and accepted that a term of seven years would be appropriate in this case. I agree.
Result
[27] An ESO of seven years’ duration will be imposed. The conditions of that
order are the standard conditions stated in s 107JA.
Stephen Kós J
Solicitor:
Crown Solicitor, Napier for Applicant
And to: Appellant
14 Chief Executive of the Department of Corrections v Webster [2012] NZHC 774.
15 Chief Executive of the Department of Corrections v Subritzky HC Auckland CRI 2004-404-98,
26 October 2005.
16 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006.
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