Chief Executive of the Department of Corrections v Lochore

[2021] NZHC 839

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000156

[2021] NZHC 839

BETWEEN

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant

AND

DOMINIC JABEZ LOCHORE

Respondent

Hearing:	23 February 2021
Appearances:	C J Boshier for the Applicant A J Bailey for the Respondent
Judgment:	20 April 2021

JUDGMENT OF NATION J

[1]    The Chief Executive of the Department of Corrections (the Chief Executive) applied, pursuant to s 107F of the Parole Act 2002 (the Act), for an extended supervision order (ESO) as to the respondent (Mr Lochore) for a period of 10 years. Mr Lochore was released from a term of imprisonment on 30 December 2020. His release conditions end on 1 July 2021. He is currently on an interim supervision order pursuant to s 107FA which has remained in place pending this judgment.

[2]    There is no dispute that Mr Lochore is an “eligible offender” as defined in s 107C. On 17 October 2018, he was sentenced to two years and six months’ imprisonment on a charge of indecently assaulting a female under 12 years of age.1 That conviction was for a “relevant sexual offence” as defined in s 107B(2).

1      R v Lochore [2018] NZHC 2693.

CORRECTIONS v LOCHORE [2021] NZHC 839 [20 April 2021]

[3]    The purpose of an ESO and the grounds required for the court to make an ESO are set out in ss 107I(1) and 107I(2) of the Act:

107I Sentencing court may make extended supervision order

(1)The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.

(2)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—

(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.

[4]Every ESO must state the term of the order, which may not exceed 10 years.2

[5]Under s 107I(5) of the Act:

(5)   The term of the order 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.

[6]    As counsel for the Chief Executive helpfully pointed out in her submissions, the Court of Appeal brought together the principles in relation to ESO’s in the recent case of Kiddell v Chief Executive of the Department of Corrections.3 No issue was taken with her summary of those points. I have had regard to them in this judgment.

2      Parole Act 2002, s 107I(4).

3      Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171.

[7]    One of the points made by the Court of Appeal in Kiddell was that the term “serious sexual offending” in s 107I(2)(a) should be given its ordinary meaning rather than being treated as a term of art.4 It is not confined to relevant sexual offences in s 107B(2).5 The term “serious” should also be given its ordinary meaning, viewed against the purpose of the ESO regime to protect the community from those who pose a real and ongoing risk of sexual offending.6

[8]    Relevantly, in assessing whether there is a high risk of an eligible offender committing a relevant sexual offence and whether they exhibit certain risk-related traits or behavioural characteristics, the court is guided by the factors set out in s 107IAA(1):

107IAA Matters court must be satisfied of when assessing risk

(1)   A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence 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.

[9]    The terms “pervasive pattern”, “serious sexual offending” and “high risk” indicate this assessment requires judgments of quality and degree.7 The decision- making exercise is of a fact-specific and evaluative nature.8

4 At [22].

5      Kiddell v Chief Executive of the Department of Corrections, above n 3, at [22] citing Holland v Chief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1 NZLR 771 at [13]- [14].

6      Kiddell v Chief Executive of the Department of Corrections, above n 3, at [22].

7 At [21].

8 At [21].

[10]   The court must be “satisfied” the criteria in ss 107I(2) and 107IAA of the Act have been established.9 There is no onus or standard of proof, rather the court must make a judicial decision on the evidence.10

[11]   An ESO engages rights which are protected under the New Zealand Bill of Rights Act 1990 (NZBORA). When deciding whether to make an ESO and, if so, for how long, courts must recognise the ESO may impinge substantially upon the offender’s freedom of movement and association.11

Assessment as to whether offender has had a pervasive pattern of serious sexual offending

[12]Mr Lochore is aged 31.

[13]   In 2007, Mr Lochore sexually offended against a young male known to him. The first incident involved him masturbating and performing oral sex on the victim. Mr Lochore also instructed the victim to masturbate him, which he did. The second incident involved Mr Lochore masturbating the victim and coercing the victim to masturbate him. Mr Lochore also rubbed his erect penis against the victim’s lower back. The first offence occurred in April 2007 when Mr Lochore was 17 and the victim was nine. The second occurred in November 2007.

[14]   Consistent with information Mr Lochore provided for a New Zealand Parole Board hearing, he told Ms Beach, the psychologist who provided the Health Assessment report, that he had offended against his initial victim on a further four occasions between the two incidents for which he was charged and convicted.

[15]   Mr Lochore was sentenced to imprisonment for the charged offending for one year and nine months. He was subsequently placed on an ESO which was extended to July 2015.

9 At [25].

10     Kiddell v Chief Executive of the Department of Corrections, above n 3, at [25] citing Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [12].

11     Kiddell, above n 3, at [27] citing Holland v Chief Executive of the Department of Corrections, above n 10, at [45].

[16]   In May 2016, 10 months after the end of Mr Lochore’s ESO, Mr Lochore arranged for the father of an eight year old female to live at Mr Lochore’s mother’s home. Mr Lochore also stayed at that home from time to time. In August 2016, he had the eight year old female lie with him on a couch and watch TV. He twice rubbed her genitals under her underwear. This was the index offending for which he was sentenced to two years and six months’ imprisonment.

Demonstration of intense drive, desire or urge to commit a relevant sexual offence

[17]   Ms Beach noted Mr Lochore’s previous partners had reported to Police over the six year period preceding the index offending that Mr Lohore had attempted to have them enact sexual contact between adults and children and had suggested they have sexual contact with their children. An ESO was in place for most of that period. Ms Beach concluded that Mr Lochore displayed an intense drive, desire or urge to commit a relevant sexual offence, that is sexual offending with young people. She noted, during the first half of his recent period of treatment, Mr Lohore reported having difficulty managing his deviant arousal. Her report provided specific information as to this. It also noted his coercion of the male victim and his later enticement of the female victim of the index offending into a particular situation where he was able to offend against her. He told Ms Beach he knew he was inappropriately transgressing boundaries but was unable to prevent himself from repeating his rubbing of the victim’s genitals. Mr Lochore had helped the father of the young victim and her sister move into his mother’s home where he also was living. In doing so, he orchestrated a situation where he was able to offend against that victim, despite advice given previously through probation and during treatment that he needed to avoid close contact with children.

The offender’s predilection or proclivity for serious sexual offending

[18]   Mr Lochore told the psychologist he fantasised about adult versus child sexual contact prior to his offending. He told her that normal sex with an adult was no longer arousing for him and his sexual preference was for 12 year old females. The index offending occurred 13 months after he had been under an ESO.

[19]   Consistent with the information in the psychologist’s report, I am satisfied Mr Lochore’s acknowledged preference is for females aged approximately 12 years, that he has a high degree of sexual preoccupation and is attracted sexually to younger children. The circumstances of his offending associated with grooming and manipulation/intimidation of the victims indicates, as the psychologist concluded, his desire to engage in sexual activity with pre-pubescent victims was enduring and highly motivating.

The offender’s self-regulatory capacity

[20]   The circumstances of his offending, the information as to the way he spoke to former partners of his interest in a sexual involvement with children and his offending in circumstances where there was a high risk of detection demonstrate he lacks the ability or desire to generally regulate his behaviour to follow social expectations and norms, and to inhibit him from further serious sexual offending with children.

The offender’s acceptance of responsibility and remorse for past offending

[21]   The psychologist said, in her discussions with Mr Lochore, he became tentative, unsure and confused when asked about empathy and remorse. She also noted he displayed distress when reflecting on adverse experiences that had affected him but did not display such distress in relation to his victims. She said, to his credit, Mr Lochore was open about the extent of his manipulation of past probation officers, victims, partners, previous treating psychologists and his current treating psychologist. There was information that, when participating in the Kia Marama special treatment programme, Mr Lochore dominated sessions in a manner that prevented other group members from giving him critical feedback, limiting the level of genuine self- disclosure he engaged in.

The offender’s understanding for or concern about the impact of his or her sexual offending on actual or potential victims

[22]   The psychologist reported Mr Lochore (to his credit) had been open about the fact he did not consider the effects of the offending upon the victims before, during or after the offending. He reported he does not experience empathy for his offending or when he sees others in emotional or physical pain. When describing the possible

impact of his sexual offending upon his victims, he spoke in generalised, vague terms, stating he was generally referencing his own abuse. It was the psychologist’s view that he has little true understanding or concern about the impact of his sexual offending on actual or potential victims.

[23]   At the hearing of this application, there was no evidence from Mr Lochore or from any psychologist engaged by him to challenge the information provided by the psychologist or her opinions which I have just set out.

[24]   I am well satisfied Mr Lochore has had a pervasive pattern of serious sexual offending.

Assessment as to whether there is a high risk that offender will commit a relevant sexual offence

[25]   To make Mr Lochore subject to an ESO I must also be satisfied there is a high risk he will in future commit a relevant sexual offence.

[26]   The psychologist concluded that, based on a multi-method assessment of Mr Lochore’s risk of further relevant offending using three different ratings, there is a high risk of him committing a further relevant sexual offence while in the community. Her analysis of static and dynamic risk factors, along with specific information related to his offence pattern, led her to conclude “there is a high (Well Above Average) [sic] risk that Mr Lochore will engage in relevant sexual offending within ten years of release”. She considered the reoffending was likely to take the form of sexual offending against a pre-pubescent child of either gender. Ms Beach suggested it is likely to involve sexualised touching, oral sex and masturbation committed upon the victim and requests for oral or manual masturbation of Mr Lochore.

[27]   The psychologist’s conclusion was not challenged through any evidence called for Mr Lochore but the basis for her opinion was tested through detailed cross- examination of her as to various actuarial instruments for measuring risk which she had used in reaching that conclusion. One was the STATIC-99R 10 item measure which assessed static risk factors empirically identified “as being predictive of sexual

recidivism”. Application of that instrument indicated Mr Lochore was highly likely to reoffend sexually placing him in the “Well Above Average” category.

[28]   Application of the VRS:SO12 instrument assesses the probability of sexual reoffending on both static and dynamic risk predictors. The psychologist considered, applying that instrument, Mr Lochore was at high risk of sexual recidivism (within the “Well Above Average” risk category). Deviance, anti-sociality and barriers to gaining from treatment all contributed significantly to his risk for future offending.

[29]   The Psychopathy Checklist–Screening Version was a measure designed to be a psychological assessment screen for the presence of criminal psychopathic personality and associated antisocial traits in forensic and criminal populations. Application of that measurement suggested Mr Lochore was at greater risk of further offending than the average for New Zealand offenders. His scores on that test also indicated a higher probability of committing serious reoffending within five years of release into the community.

[30]   Mr Lochore’s counsel submitted this Court should exercise caution in relying on the measurement of risk applying those instruments. In particular, he had the psychologist acknowledge those instruments are not designed to assess the risk of purely relevant sexual offending, as that term is used in the Parole Act.13 Instead, they determine an offender’s risk of committing any sexual offending. The risk of reoffending these tools produce could, for instance, include accessing child sexual exploitation material on the internet which would not come within the definition of relevant sexual offending in connection with an ESO. The psychologist also acknowledged to Mr Bailey that, at some point, Mr Lochore’s level of risk had been assessed using the ASRS-R measurement. Ms Beach notes this measurement was intended by Corrections as a screening instrument for Corrections to work out which treatment programme people should go into, rather than as a full standalone risk assessment. In 2018, application of that measurement indicated Mr Lochore had a moderate/high score. Mr Bailey suggested that application of the ASRS-R instrument should also be considered carefully because it assessed the level of risk against an

12     Violence Risk Scale-Sexual Offence version.

13     Parole Act 2002, s 107B.

entirely New Zealand-based sample of the population, in contrast to the VRS:SO which was primarily based on a Canadian population.

[31]   Mr Bailey also had the psychologist acknowledge the potential for the risk of reoffending to be reduced through participation in the Kia Marama programme which Mr Lochore had completed. He suggested it would have been of assistance for this Court to know what percentage of offenders who had participated in that programme had reoffended within 10 years and noted this Court had not been provided with that information.

[32]   I bear in mind the points Mr Bailey made through cross-examination and briefly in his concluding submissions but my assessment as to whether there is a high risk Mr Lochore will in future commit a relevant sexual offence has to be based on all the information before this Court and not just on the scores arrived at on an application of the various measurement tools referred to in the psychologist’s report or the ASRS- R instrument used earlier.

[33]   Importantly, that was also the way the psychologist made her assessment. In her report, she said that “[d]uring the current health assessment, actuarial instruments and noted clinical risk factors14 were evaluated to establish the risk that Mr Lochore would commit further relevant sexual offences while in the community”. Although the psychologist referred to various measurement instruments, she did not rely on the scores achieved on any one such measurement. While the psychologist acknowledged the various measurement instruments had not been devised or manipulated to establish the risk of an offender committing a relevant sexual offence, she said she, and others using these tools, look at the offending pathway. This involves looking at what the person has done and what they are likely to do based on their past actions. She said this is how they decide what sort of offending the person is likely to carry out in the future. She said, while the measurements are used to assess the likelihood of offending, it is the information from past offending which is used to predict what kind of offending is likely.

14     Emphasis added.

[34]   The psychologist further articulated the need “to use a static measure, a dynamic measure, a change measure and then to use your clinical judgement about other factors” when making an assessment. I accept that is what she did in reaching her overall conclusion that, with Mr Lochore, there is a high risk he will be involved in further relevant sexual offending, as that term is used in s 107I(2)(b)(i) of the Act.15

[35]   There was also an implied suggestion through cross-examination that the psychologist, as with others who have to prepare reports, has a bias towards expressing such a conclusion because that is what the legislation required her to advise on.

[36]   Section 107F(2A)(a)(ii) requires a health assessor’s report to address whether “there is a high risk that the offender will in future commit a relevant sexual offence”. Although that is what the legislation requires of the medical assessor providing a health assessor’s report, I do not accept the psychologist, providing a report to the court as an expert, would be inclined to express an opinion in absolute terms simply because that would be consistent with the wording of the legislation. It was Ms Beach’s evidence that, on occasions, she had qualified her opinion of risk in her reports.

[37]   Under cross-examination, the psychologist also accepted that successful engagement in the Kia Marama programme at prison could reduce the risk of future serious sexual offending but explained how Mr Lochore’s behaviour in group sessions reduced the benefits he could otherwise have obtained from his involvement in that programme. That behaviour led to him being provided with individual sessions.

[38]   In considering the potential for protective factors to have reduced the risk of future offending, the psychologist acknowledged that Mr Lochore had engaged in a treatment programme and had an intellectual understanding of his offending process. But, Ms Beach also said he had been reluctant to acknowledge his attraction to pre- pubescent children, reluctant to engage in release planning which would adequately assist him to manage his risk and had been unable to change important inter-personal dynamics that parallel his offending.

15     See Parole Act, 2 107B for the meaning of relevant sexual offence.

[39]   Mr Lochore was sentenced for the current index offending in the High Court on 17 October 2018. The Judge had to consider a possible preventive detention sentence and had the benefit of reports from both a psychologist and psychiatrist. With the benefit of the detailed information in those reports, Mallon J considered Mr Lochore could be dealt with by way of a finite sentence. Relevant to her decision was the possibility that an ESO application could be made at the end of that prison sentence. Her Honour recommended to the Department of Corrections that it consider making an application for an ESO which could then be put in place on Mr Lochore’s release from his prison sentence. She considered an ESO would contain a number of important protections for the community after Mr Lochore’s release.

[40]   I am satisfied, on all the information put before me, that there is a high risk Mr Lochore will in future commit a relevant sexual offence.

The exercise of discretion and the duration of an ESO

[41]   The court has a discretion as to whether to make such an ESO but it has not been suggested that I should decline to make an ESO in the exercise of my discretion. I am satisfied the making of an ESO is necessary to protect people, particularly young children or pre-pubescent teenagers, from the risk of further relevant sexual offending against them by Mr Lochore.

[42]   Corrections suggest the ESO should be for the maximum possible period of 10 years because the risk Mr Lochore poses to the community is likely to remain for a significant period of time. They suggest that research indicates the risk of individuals with Mr Lochore’s assessed risk level remains stable over an extended period of time. They also note that this Court may cancel the ESO at any time during the term of the order where an offender is believed to be no longer likely to commit a relevant offence.16

[43]   Counsel pointed out that the fact Mr Lochore was subject to an ESO for a period of five years previously did not prevent him from committing the index offending soon after the expiry of that ESO.

16     Section 107M.

[44]   Mr Bailey for Mr Lochore submitted, if an ESO had to be made, it should be for a period less than 10 years. He suggested there is a trend in recent cases for the court to make ESO’s for periods less than 10 years. He said there is evidence that Mr Lochore has worked hard at participating in a treatment programme and he needs to have an incentive to continue that so any risk he poses can be reduced to a level where it is less than high. He referred to Mr Lochore’s relatively young age. Through his submissions and cross-examination generally, he reminded this Court of how the making of an ESO significantly impinges on an individual’s rights under the NZBORA.

[45]   There was information from the psychologist that, despite issues with the way Mr Lochore participated in the Kia Marama programme, he had made some effort to participate appropriately so he could benefit from the programme.

[46]   Following his engagement in individual counselling, the psychologist said Mr Lochore appeared to be trying to acknowledge and manage his behaviour and this had resulted in fewer angry outbursts, although he continued to engage in behaviours which made it difficult for both him and others to benefit from the feedback of others in group sessions. She noted however that he was able to increasingly acknowledge the fact he was attracted to pre-pubescent children and he completed elements of the programme devoted to the development of relationship skills and a safety plan. Ms Beach said he was able to identify relevant high risk situations and warning signs that he was at risk of future sexual offending but there was uncertainty as to whether he would adhere to that plan while in the community. The psychologist also referred to aspects of his personality which leave him at risk for future sexual offending. She considered those behaviours were linked to enduring personality traits that not only were likely to increase the risk of sexual offending but were also likely to preclude him to having an open and respectful relationship with probation and other support agencies available to help him in the community.

[47]   Those views were consistent with the information in health reports provided to the High Court when Mr Lochore was sentenced for the index offending in October 2018.

[48]   In discussing the results of a VRS:SO risk assessment, the psychologist noted that Mr Lochore’s scores indicated he had made changes in a number of relevant areas but said these changes were “considered to be fragile and untested in the community”.

[49]   The information before me indicates, through participation in the Kia Marama programme while serving his sentence for the index offending, Mr Lochore made some progress in addressing significant areas of his personality and thinking that cause him to be at a high risk of further relevant sexual offending. He needs to continue with that work to reduce his level of risk. If he does not, it is likely Corrections will have to seek a further ESO.

[50]   I consider Mr Lochore will have a greater incentive to continue with this work if he can work towards a date less than 10 years distant when he knows there will be a full assessment as to the further progress he might have made and how he has been able to regulate his behaviour away from the prison environment. I consider it is in Mr Lochore’s interests and in the interests of the community that he have that greater incentive rather than have the horizon set at 10 years but with the ability for him to seek a review of that period at some uncertain time in the future when he might consider he has made the necessary progress. I consider the ESO should be for a period of five years.

Conclusion

[51]   I accordingly make an order that an extended supervision order for a period of five years be imposed on the respondent.

Solicitors:

Crown Solicitor, Christchurch

A J Bailey, Barrister, Christchurch.