Chief Executive of the Department of Corrections v Parsons
[2023] NZHC 2600
•18 September 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2016-409-156
[2023] NZHC 2600
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
PIERRE PARSONS
Respondent
Hearing: 20 June 2023
(Further submissions filed on 3 August 2023 and 18 August 2023)
Appearances:
K A White for Applicant A J Bailey for Respondent
Judgment:
18 September 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 18 September 2023 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v PARSONS [2023] NZHC 2600
[18 September 2023]
Introduction
[1] The respondent, Ms Parsons, has been the subject of two extended supervision orders (ESOs). The first ESO came into force on 14 June 2006 for a period of 10 years.1 When that order expired, a further 10-year ESO was made, which came into force on 22 February 2017.2
[2] The Parole Act 2002 (the Act) requires a court to review an ESO if an offender has been subject to an ESO for a period of 15 years from when the first ESO commenced.3 The chief executive of the Department of Corrections has therefore made an application for review of the ESO.
The review process
[3] The review is conducted under s 107RA of the Act.4 It essentially proceeds as a fresh application for an ESO.5 On review, the court can either confirm the ESO or cancel it.6 The court may only confirm the ESO if it is satisfied there is “a high risk that the offender will commit a relevant sexual offence within the remaining term of the order”.7 If the court is not satisfied there is a high risk, it must cancel the ESO.
Ms Parsons’ background
[4] When Ms Parsons was first assessed for an ESO she was referred to as Mr Parsons. She has since confirmed she identifies as female, and is now taking testosterone blocking medication and oestrogen. Accordingly, throughout this judgment, I will refer to her as Ms Parsons.
1 Chief Executive of the Department of Corrections v Parsons HC Christchurch CRI-2006-409-44, 31 May 2006.
2 Chief Executive of the Department of Corrections v Parsons [2017] NZHC 229.
3 Parole Act 2002, s 107RA.
4 I note that s 107RA does not make reference to s 107I and this is presumably because the Court has already found that the offender has a pervasive pattern of serious sexual offending.
5 Parole Act, s 107RA(4).
6 Section 107RA(5).
7 Section 107RA(6)(a).
[5] Ms Parsons was first convicted of offending in 1995 when she was aged 18 years. The offending related to the violent sexual assault of a 12-year-old girl unknown to her. The victim was grabbed by Ms Parsons while in the changing rooms of a sports stadium in Dunedin. Ms Parsons then tied a rope around the victim’s neck, causing the victim to lose consciousness. Ms Parsons then dragged her into a room, removed her clothing and raped her. She was subsequently sentenced to 11 years’ imprisonment.
[6] While completing the Kia Marama programme in prison, Ms Parsons disclosed that she engaged in undetected sexually abusive behaviour during her adolescence. This behaviour included sexual intercourse with an intellectually disabled 15 or 16-year-old girl, when she was 16 years old, and touching the genitals of a four-year-old female known to her when she was 17 years old. However, in her interview with Ms Charlene Lang, a clinical psychologist, in December 2021, Ms Parsons denied engaging in any undetected sexual offending and referred to “almost offending” against a four-year-old when she was 17 years old.
[7] On her release from prison, Ms Parsons resided at the Salisbury Street Foundation and attended the STOP programme. Despite this, she was found to have images of children in her room, with staff being concerned she was masturbating to them. Her secretive behaviour and failure to adhere to the rules of the residence were considered concerning.
[8] Ms Parsons first became subject to an ESO in 2006. She has been convicted for breaching the conditions of this order in 2006, 2011, 2014 and 2016. The convictions in 2006 and 2011 were for violations of electronically monitored boundaries. The conviction in 2014 related to her violating the rules of the supported residence she was living in when she arranged to have a sex worker visit her. The 2016 convictions related to three incidents which occurred between 2015 and 2016. Two of these breaches related to Ms Parsons approaching an unknown 15-year-old girl in a school uniform and giving her notes on two separate occasions. The first of these notes was sexual in nature and the second included a request to buy clothing items and included Ms Parsons’ mobile phone number. Ms Parsons denies any sexual intent in her behaviour related to these breaches. She also denies that any of the notes given to
the girl were sexual in nature. The other breach around this time related to Ms Parsons offering a female staff member, at the residence where she lived, a gift voucher to see the staff member naked.
[9] Ms Parsons was convicted in January 2021 for possession of objectionable material for which she received a prison sentence of nine months. This offending arose after she was given approval in June 2020 to use an internet-capable device. She searched for sexual material on the internet, although none of the behaviour was illegal. When concerns about the sexual focus of her internet use were raised with Ms Parsons, she appeared to have limited insight into why this behaviour was concerning. She then downloaded an app to block sexual content but later deleted the app, citing the financial cost. Her probation officer found that she was deleting her internet browsing history, and she was warned to stop this.
[10] In October 2020,8 her probation officer completed a check of her browsing history. There were concerns related to two web pages titled “ten year old girl and 20 year man” and “horny little school girls”. As a result, Ms Parsons’ phone was confiscated and forensically examined by police, where a downloaded video of child sexual abuse material (involving an adult female sexually abusing an infant male) was found. Ms Parsons claimed she was not seeking child sexual abuse material and accidentally downloaded the video while looking at legal pornography. While she attributed this to her lack of understanding of how the internet worked, that explanation was considered somewhat implausible given she had demonstrated ability to navigate the internet.
[11] Ms Lang reports that since the current ESO was imposed on 22 February 2017, Ms Parsons has not incurred any breaches of her conditions. She has predominantly resided in the community, apart from when she was serving a sentence of four and a half months’ imprisonment. In September 2018, Ms Parsons moved to Dunedin to be closer to her family support. There, she resided in Te Whare Manaaki, a supported residence managed by an organisation known as Pact. Eventually, however,
8 Although the Health Assessor’s report of 7 December 2021 says this occurred in October 2021 at para 18, at para 23 the date given is October 2020 and this is consistent with her being convicted in January 2021.
Ms Parsons was evicted from the Pact accommodation and was subsequently imprisoned for the offending involving downloading objectionable material. Ms Parsons would not allow Ms Lang to contact past staff when preparing her report. Ms Parsons was released from prison in March 2021 to reside in Tōruatanga, which is supported accommodation provided by the Department of Corrections, near Christchurch Men’s Prison. It appears she has generally settled in well there and has engaged with an LGBTQI advocate. Since April 2021 she has also commenced taking testosterone-blocking medication, with a view to increasing this over time to address her gender dysphoria.
[12] Since commencing hormone treatment, Ms Parsons has stated a preference for being addressed as a female and has been more consistently dressing in a feminine manner. She has recently gained employment, working for a company manufacturing tiny homes in Rolleston. She is now having fortnightly outings with staff, and her independent outings, such as to the beach or to the mall, have increased over time. Staff say that she seems to engage positively with them on outings and is more confident to venture into the community independently.
[13] Between 26 April 2022 and 7 December 2022, Ms Parsons attended 15 individual treatment sessions to address her offending risks, and treatment recommenced on 8 February 2023. Overall, Ms Parsons is assessed as demonstrating increased willingness to engage in treatment. However she still demonstrates emotional avoidance and reluctance to discuss her offending and related risks in detail, and so more specific offence-related work has not yet commenced.
The evidence
[14] In anticipation of this application, a health assessor’s report was prepared by Ms Lang on 7 December 2021 (the first report). The application was made on 1 June 2022 and set down to be heard on 6 December 202. On 19 September 2022, the respondent sought an adjournment of the hearing with a view to obtaining a second expert report.9 On 30 March 2023, recognising there had been delay since her
9 Though one has not been provided.
first report was prepared, Ms Lang prepared an addendum to her first report (the updating report). She was also called to give oral evidence and be cross-examined.
[15] Ms Lang’s first report evaluated Ms Parsons’ risk of reoffending using actuarial instruments and in light of other clinical and offending risk factors. The first actuarial instrument used was the STATIC-99R which assesses static risk factors (those that are fixed, such as offending history) to predict sexual recidivism in male sexual offenders. Ms Parsons’ score of 7 places her in the 97th percentile, or at Level IVb (Well Above Average) risk category, being the highest risk category. While Ms Lang cautioned against using the score to assess absolute risk probability (as opposed to relative risk), she pointed out that the group of men in the STATIC-99R routine normative sample who had the same score as Ms Parsons had a predicted rate of sexual reconviction of between 20.9 per cent to 26.7 per cent, with 95 per cent confidence, over five years from their release in prison. In comparison, in a routine sample of sexual offenders, the average sexual recidivism rate in the first five years is between five and 15 per cent.
[16] Using the Violence Risk Scale: Sexual Offense Version (VRS-SO), a tool which, among other things, assesses sexual recidivism, Ms Parsons was assessed overall as being at Level IVa (Above Average) risk category. This assessed risk of sexual reoffending is after five years based on both static and dynamic risk predictors. The estimated sexual recidivism rate for the group with the same total VRS-SO score and degree of change as Ms Parsons was between 20.23 per cent and 28.99 per cent, with 95 per cent confidence.
[17] In her updating report Ms Lang also utilised the STABLE-2007 which assesses stable dynamic risk factors.10 Ms Parsons was found to be in the high range in terms of risk of sexual reoffending with several dynamic risk items identified. The problematic issues for Ms Parsons were: limited positive social influences, a lack of capacity for relationship stability, a sense of general social rejection, difficulties with concern for others, impulsivity, poor problem-solving skills, negative emotionality, a history of sexual drive/preoccupation and sexualised coping, a history of deviant sexual interests and a history of poor compliance with supervision. Ms Lang notes the
10 That is, factors which are amenable to change but which tend to persevere for months or years.
combination of Ms Parsons’ STATIC-99R and STABLE-2007 scores places her in the Level IVb (Well Above Average) risk category.
[18] Ms Lang also administered the Psychopathy Checklist: Screening Version (PCL:SV), which is considered to be predictive of a general serious reoffending risk. Ms Parsons’ score was the same as the average found for a New Zealand sample. However, her scores on items related to interpersonal and affective deficits were above the median score found in the New Zealand sample. Those with above medium scores on those items had a high probability of committing serious violence offences in the first two years of release from prison.
[19] Ms Lang then also considered other factors which related to Ms Parsons’ risk of reoffending and which were not directly assessed by these instruments. Ms Lang noted that Ms Parsons largely attributes her offending behaviour to her feelings of gender dysphoria and not being provided with gender affirming care. Ms Lang notes that there is no evidence that treatment of gender dysphoria reduces risk of sexual recidivism in transgender individuals. However, there has been only limited research in this area and it is possible that there are gender-specific risk factors that have not been captured by the risk instruments used.
[20] The second point Ms Lang notes is that the oversight and restrictions associated with the ESO’s are likely playing a role in managing the risk of her reoffending. She says when there has been a relaxing of restrictions, Ms Parsons has engaged in behaviour which suggests an increased risk of reoffending. Ms Lang considers Ms Parsons will likely need a high degree of support to be able to move towards more independent management of her risk. If the ESO was cancelled at this time, Ms Parsons would likely struggle to manage without that support and oversight, and her risk of reoffending would likely increase.
[21] On the other hand, Ms Lang notes that Ms Parsons has more recently presented with improved compliance with supervision and the conditions of her ESO which is likely to be protective in regard to her risk of reoffending. She has also increased the extent of her social supports, including reconnecting with her family, although the extent to which this will be protective against reoffending is uncertain.
[22] Overall, she concludes that Ms Parsons presents as at least being at Level IVa (Above Average) risk of committing a further relevant sexual offence while in the community. If Ms Parsons were to offend again, this would likely be in the context of increased emotional dysregulation and negative affect, leading to sexualised coping and deviant sexual fantasy. Given her most recent conviction, she may offend in the context of increased sexual preoccupation and deviant sexual interests by accessing images of child abuse via the internet. She may also make unwanted sexual advances towards female children or adults whom she perceives may be receptive to such advances.
[23] While Ms Lang notes the seriousness of Ms Parsons’ sexual offending has decreased over time, it is uncertain how much of this decrease can be attributed to her ability to manage risk factors given she has been subject to an ESO since 2006. It is Ms Lang’s view that the protective nature of the ESO is what reduced the seriousness of Ms Parsons’ offending behaviour.
[24] Ms Lang’s first report then goes on to consider the relevant factors in s 107IAA. In summary, Ms Lang considers Ms Parsons continues to present with a high number of dynamic risk factors which suggest her risk will remain Above Average for the remainder of her current ESO. Her most recent offending suggests that she continues to experience an urge to engage in relevant sexual offending and continues to demonstrate a predilection or proclivity for sexual offending. She also continues to demonstrate difficulties in relation to her sexual regulation. While she expresses some remorse in relation to her earlier convictions, she continues to struggle to accept responsibility for the majority of her offending behaviour. Although she can consider the impact of her offending on past victims, albeit in a simplistic manner, she does not appear to able to apply this when considering the impact of her behaviour on potential future victims. Ms Lang has little confidence that Ms Parsons will be able to independently manage her risk of reoffending given she has most recently offended while under a high level of supervision.
Submissions
Submissions for Ms Parsons
[25] Mr Bailey, for Ms Parsons, emphasises that s 107RA anticipates a full, independent and temporal review of the respondent’s risk level. If this is done in this case, he says the ESO should be cancelled because:
(a)the Court will not be satisfied that Ms Parsons displays an intense drive, desire, or urge to commit a relevant sexual offence;
(b)even if Ms Parsons does, the Court will not be satisfied that the respondent is at high risk of committing a relevant sexual offence; and
(c)even if Ms Parsons is at high risk of committing a relevant sexual offence, there is not a strong justification for the continuation of the order.
[26] In challenging Ms Lang’s conclusion that Ms Parsons’ conviction history demonstrates she has an intense drive to commit relevant sexual offences, Mr Bailey points out that Ms Parsons has only one conviction for a “relevant sexual offence”. That is for the rape offending which occurred when she was 18 years old. At the time Ms Lang prepared her first report, Ms Parsons was 44 years of age and the rape had occurred 26 years earlier. Mr Bailey cross-examined Ms Lang on this point, putting to her that there is “a big difference between going on the internet and looking at images and having the urge to go out and commit a really serious offence against a child”. In Mr Bailey’s submission, Ms Lang did not provide a logical explanation for this conclusion, despite the opportunity afforded to do so. That is because, as a matter of logic, Ms Parsons’ conviction history, by itself, cannot be said to establish that conclusion.
[27] In Mr Bailey’s submission, Ms Lang also mistakenly treated the internet offending as “relevant sexual offending”. As the Court of Appeal noted in McIntosh v Chief Executive of the Department of Corrections:11
… the definition does not include any offences under the Films, Videos, and Publications Classifications Act as the Judge appears to have thought. Some of these latter offences are “relevant offences” in terms of s 107B(1) but they are not “relevant sexual offences” in terms of s 107B(2).
[28] In Mr Bailey’s submission, the fact that Ms Parsons has recently committed non-relevant sexual offending does not mean that she has an intense drive, desire or urge to commit a relevant sexual offence. This is supported, he says, by the comment in Ms Lang’s report that Ms Parsons’ “offending pathway has also appeared to change, given her current offending related to objectionable material”. In Mr Bailey’s submission, the recent offending simply demonstrates a desire to commit other, less serious offending, and does not support a conclusion that the criterion in s 107IAA(1)(a) has been met.
[29] If that conclusion is reached, then that concludes the enquiry and the ESO should not continue.12
[30] In terms of whether there is a high risk that Ms Parsons will commit a relevant sexual offence within the remaining term of the order, Mr Bailey submits that the report by Ms Lang is problematic in that she is unable to describe what she means by “high risk”. Mr Bailey submits that this is important because it is possible that Ms Lang has not “accurately calibrated” her choice of language to that of the legislation. If that is the case, then her opinion will not assist the Court.
[31] Mr Bailey submits that Ms Lang failed to use precise language or to explain what she meant when she said high risk. The best explanation she appeared to offer was that “ … high risk would, would be above average”. Ms Lang’s first report did not even attempt to make an assessment as to whether or not Ms Parsons was at “high risk” of committing a relevant sexual offence. Rather, at para 47 of her first report,
11 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218 at [31] (footnotes omitted).
12 See Chief Executive, Department of Corrections v Martin [2016] NZHC 1060 at [56].
she said that Ms Parsons was “considered to present at least a Level IVa (Above Average) risk of committing a further relevant sexual offence”. In her updating report, Ms Lang did at least refer to the test of being being at high risk, but Mr Bailey criticises her for not explaining, in a coherent way, what those words meant in her report. In the absence of such an explanation, Mr Bailey says the Court cannot have confidence that the words “high risk” used in her report are calibrated in any way to those words as they appear in the Act. Without such confidence, the Court could not rely on Ms Lang’s report and evidence to reach a conclusion on Ms Parsons’ risk. Unless the risk category language is precisely used, it carries the risk that offenders will have ESOs imposed on them wrongly. There is a fine line between “high risk” and less than “high risk”. Unless the former can be established, the Court has no jurisdiction to impose an ESO.
[32] As an adjunct to this argument, Mr Bailey points out that the testing tools which Ms Lang used to assess risk make no attempt to discriminate between types of sexual offences (such as “relevant” as opposed to “non-relevant” sexual offences). In this case, he says the failure to discriminate between these two is particularly problematic. In terms of s 107RA(1) of the Act, Ms Parsons’ risk of committing a further sexual offence is irrelevant. The Court must focus on only “relevant sexual offences”.
[33] In this case, Mr Bailey points out that a significant proportion of Ms Parsons’ risk of reoffending as assessed by the actuarial tools appears to include non-relevant sexual offences. As Ms Lang accepted, none of the tools attempt to assess the risk that an offender will commit relevant sexual offences as defined in the Act. Given Ms Lang accepts that Ms Parsons’ offending pathway appears to have changed, and when she cannot say what proportion of Ms Parsons’ risk as assessed by the tools relates to relevant sexual offending, the testing tools do not, in any material way, assist to determine Ms Parsons’ risk of committing a “relevant sexual offence”.
[34] The next matter which Mr Bailey says casts doubt on Ms Lang’s assessment of risk is her failure to take into account the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. She acknowledged that there was no research around the impact of the register, and she accepted that it may assist in managing such offending. Mr Bailey points out the purpose of that Act is to reduce
the risk posed by serious child sex offenders,13 and, in Wharton v Chief Executive of the Department of Corrections, the Court of Appeal acknowledged that the possibility the respondent would be on the Child Sex Offender Register would be “a further protective factor to be taken into account”.14
[35] The next point made by Mr Bailey is that even if the Court was to find the s 107IAA(1)(a) prerequisite was made out, there is insufficient justification for the continuation of the ESO. Before a reviewing Court can confirm an ESO, it must also be satisfied there is a “strong justification” to continue it.15 Here, Mr Bailey submits there is no such strong justification. This is because Ms Parsons has now been subject to ongoing restrictions relating to offending which occurred in 1995 when she was 18 years of age. She has therefore been subject to restrictions pertaining to the rape offending for more than 28 years. Mr Bailey submits that the fact the ESO legislation was not in existence when she committed the rape, but was imposed “retrospectively”, makes that more egregious.
[36] Furthermore, the restrictions which Ms Parsons has been under are very restrictive. She has also not been managed fairly or humanely. For example, Ms Parsons had previously been required to largely cease her cross-dressing behaviour, which Ms Lang agreed was not necessarily relevant in terms of managing her risk. If the ESO was confirmed, it would be done based on Ms Parsons’ possible, as opposed to probable, risk. Given that Ms Parsons’ risk of any sexual reoffending over the next 10 years using the VRS-SO is estimated at 36.31 per cent,16 the risk of relevant sexual offending must, of course, be much lower.
[37] Finally, Mr Bailey submits that, as the Court of Appeal confirmed in Chisnall, an ESO is a “punishment” for the purposes of the New Zealand Bill of Rights Act 1990 (NZBORA).17 Having regard to how long Ms Parsons has been subject to an ESO, and the conditions and restrictions she has been placed under, the continuation
13 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 3.
14 Wharton v Chief Executive of the Department of Corrections [2019] NZCA 320 at [37].
15 R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53].
16 Or between 32.16 per cent and 40.68 per cent with 95 per cent confidence.
17 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [138]; and Chisnall v Attorney-General [2022] NZCA 24, (2022) 13 HRNZ 107 at [3](a).
of her ESO would amount to a disproportionately severe punishment under s 9 of NZBORA for which there is not a strong justification.
Submissions for the chief executive of the Department of Corrections
[38] The applicant filed extensive submissions prior to the hearing setting out the relevant law and summarising Ms Lang’s evidence on the risk that Ms Parsons would commit a relevant sexual offence within the remaining term of the order. Ms White submits that having regard to the evidence, the Court could be satisfied that the matters set out in s 107IAA were present and Ms Parsons remains at a high risk of committing a further relevant sexual offence during the balance of the current ESO.
[39] On receipt of the written submissions filed by the respondent, Ms White also filed submissions in reply. While the respondent criticised Ms Lang’s evidence on whether Ms Parsons still displayed an intense drive, desire or urge to commit a relevant sexual offence because Ms Lang treated the internet offending as constituting “relevant sexual offending”, Ms White says that is not correct. Ms Lang took note of the internet offending because it indicated a continued sexual interest in children. Ms White says the continued sexual interest in children is a relevant factor to take into account in assessing whether the intense drive, desire or urge to commit a relevant sexual offence continues. Ms Lang was entitled to take that offending into account to support her opinion that Ms Parsons, while denying she is motivated to engage in harmful sexual behaviour, displays behaviour that is contrary to those denials.
[40] In response to the criticism of Ms Lang’s use of terminology when assessing Ms Parsons as being at “high risk” of sexual reoffending, Ms White says that Ms Lang acknowledges there is no assessment tool that directly assesses an offender’s risk of committing a relevant sexual offence. However, she was clear in her evidence that a person’s score on risk assessment tools is not of itself necessarily a complete assessment of risk. Ms Lang’s assessment that Ms Parsons was at high risk of committing a relevant sexual offence was:
… based on the risk measures that I’ve considered, also considering her history of re-offending, her behaviour while she’s been on the ESO, that she presents a high risk of re-offending …
[41] Ms White points out that Ms Lang remained unshaken in her evidence that there remains a high risk of offending. She also added that while Ms Lang was criticised for not referring to the Child Protection (Child Sex Offender Government Agency Registration) Act, she gave evidence that there was no research in the New Zealand context around the impact of the register and so it was hard to say what impact registration might have. In those circumstances, it was understandable she did not include that factor in her risk assessment.
Discussion
[42] The starting point is that I may only confirm the ESO if, on the basis of the matters set out in s 107IAA, I am satisfied there is a high risk that Ms Parsons will commit a relevant sexual offence within the remaining term of the order.18 This requires me to be satisfied that Ms Parsons:19
(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 or 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.
[43] I must be satisfied as to each of these factors. If I am not satisfied as to one or more of the factors, an order cannot be made.20
[44] The relevance of these four factors to offending risk was explained by the Court of Appeal in McIntosh v Chief Executive of the Department of Corrections as follows:21
18 Parole Act, s 107RA(6)(a).
19 Section 107AA(1).
20 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [32].
21 McIntosh v Chief Executive of the Department of Corrections, above n 11, at [22].
Determining whether there is a high risk that a given offender will commit a relevant sexual offence within a stated period is an inherently difficult exercise. Parliament has provided some structure and discipline to the assessment by prescribing the characteristics any offender who poses this high risk will have. The first two – intense drive, desire, or urge to commit a relevant sexual offence and predilection or proclivity for serious sexual offending – could be seen as animating characteristics. The second two – limited self-regulatory capacity; and lack of acceptance of responsibility or remorse for past offending and absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims – could be described as protective characteristics. These characteristics cannot be construed and applied in absolute terms. They are human characteristics and, to the extent they are present, they will vary from one person to another.
[45] The difficulty of this task is exacerbated in the case of an offender, like Ms Parsons, who has been subject to an ESO for a significant period of time. It is unlikely, under the restrictions of an ESO, that what the Court of Appeal describes as the “animating characteristics” will have clearly manifested themselves. Both the health assessor, and the Court, must to a large extent rely on other signals, including offence-paralleling behaviour, to determine whether these characteristics remain in play. With these comments in mind, I turn to consider the evidence in this case.
[46] In considering whether Ms Parsons still displays an intense drive, desire or urge to commit a relevant sexual offence, I note the use of the word “displays” in terms of an ESO application does not mean that the behaviour must be externally manifested at the time of the application. It is sufficient that such behaviour may be “latent and emerge only in certain contexts”.22
[47] In her first report, Ms Lang relied on both Ms Parsons’ conviction history and her most recent sexual offending (downloading child sexual abuse material) to conclude that her underlying intense drive, desire or urge to commit a relevant sexual offence was still present, even while subject to a high level of supervision and having undergone various forms of treatment since she was first imprisoned in 1995. Ms Lang acknowledged that Ms Parsons denied being motivated to engage in harmful sexual offending, but given there was behaviour contradicting her denials, Ms Lang put more weight on her history than her self-reporting.
22 Chief Executive of the Department for Corrections v Douglas [2016] NZHC 3184 at [86].
[48] Particularly troubling for the Court’s assessment, though, was the fact that since the offending in 2020, Ms Parsons has started taking testosterone blocking medication and oestrogen. While Ms Lang acknowledged she was not a medical expert, she agreed that lowering testosterone levels could have an impact on an individual’s sexual drive. While acknowledging it was a possibility that the hormone treatment Ms Parsons was taking would lower her sexual drive, Ms Lang said that was not necessarily a certainty. The difficulty here was that we are reliant on Ms Parsons’ self-reporting as to her current level of sex drive, and it was difficult to know how credible that was given she had denied any issues with sexual drive in the past, yet continued to engage in behaviour that contradicted those assertions.
[49] The same issues arise in deciding whether she has a predilection or proclivity for sexual offending. I am left with the situation where there is a clear pattern of Ms Parsons taking the opportunity, when it arises, to give expression to her sexual drive, for example, by approaching a school girl as she did in 2015 and 2016, and by downloading inappropriate material from the internet in 2020. I have no concrete evidence to suggest her intense drive, desire or urge to commit a relevant sexual offence has abated. While, of course, none of her behaviour since being on an ESO constitutes a relevant sexual offence, that is to be expected under the restrictions of an ESO. What remains of concern to me is that as recently as 2020, Ms Parsons was not open or honest about what she was doing when searching the internet. For this reason, I have little confidence in her self-reporting and am not prepared to find that her intense drive, desire or urge to commit a relevant sexual offence has abated.
[50] The same factors are relevant to the assessment of whether Ms Parsons has a predilection or proclivity for serious sexual offending. Again, there is evidence that Ms Parsons has, even while under the restrictions of an ESO, found opportunities to engage in concerning behaviour with a sexual motive, including the approaches to a school girl and the downloading of child sex abuse material.
[51] I share Ms Lang’s concern that Ms Parsons’ predilection or proclivity for serious sexual offending remains valid, particularly where she cannot identify or employ strategies to manage any offence-related sexual interest, nor is the evidence that she is able to engage in or display healthy sexuality or adaptive sexual behaviours.
[52] In terms of Ms Parsons’ self-regulatory capacity, there is some evidence of more effective self-regulation displayed by her ability to maintain employment over a 15 month period through to March 2023. As Ms Lang explains that does reflect positively on her ability to regulate her behaviour more generally. I also observe that there seems to be a trend towards more compliant and less negative behaviour, particularly since Ms Parsons has been undergoing hormone therapy and allowed to dress consistently with her gender preference. However, as Ms Lang explains, Ms Parsons continues to require a relatively high level of support to maintain any apparent improvements in her self-regulation. Where there has been a relaxing of restrictions, such as granting her unrestricted access to the internet, her ability to manage her behaviour has been poor. Ms Lang notes that Ms Parsons has either been dishonest about her sexual preoccupation or compulsivity, or shown a lack of insight into the problematic nature of her sexual focus, and for this reason, she has little confidence that Ms Parsons would be able to regulate these effectively without oversight. I accept that the urge to commit a relevant sexual offence is being managed by the level of restrictions she is under rather than by her ability to independently manage it.
[53] In terms of her acceptance of responsibility and remorse for past offending, Ms Lang notes that Ms Parsons is reluctant to discuss her offending behaviour in detail and externalises responsibility for her most recent offending. Ms Lang remains of the view that Ms Parsons demonstrates limited responsibility and remorse for her sexual offending in 1995 and shows no remorse or acceptance of responsibility for her offending subsequent to this.
[54] Finally, in terms of Ms Parsons’ understanding for or concern about the impact of her sexual offending on actual or potential victims, Ms Lang notes that Ms Parsons has deficits in relation to empathy, particularly in respect to her victims of sexual offending. While she could articulate how her actions may have harmed others in a simplistic manner, her ability to generalise the impact of her past sexual offending on her victims appeared poor. In relation to her more recent offending involving downloading child abuse material, she did not appear to have concern for how the victims portrayed in those images may be affected. Ms Lang comments that Ms Parsons appears more focused on her own victimisation and grievances and
appeared to have limited concern for how her behaviour could impact potential victims.
[55]I note these conclusions were not challenged, so I accept them at face value.
[56] Having considered those four criteria under s 107IAA, and being satisfied that they are still present, I turn to whether there is, taking those conclusions into account, a high risk that Ms Parsons will commit a relevant sexual offence within the remaining term of the order.
[57] Mr Bailey advanced thoughtful submissions on the use of the term “high risk” in s 107RA. I accept that this is a high threshold, although not as high as the threshold in s 107RA(1)(b) which requires there to be a “very high risk” of committing a relevant violent offence where the ESO has been imposed on a violent offender.
[58] I accept I need to be careful about accepting Ms Lang’s conclusions as to “high risk” as necessarily being equivalent to the statutory threshold. In the end, it is my conclusion as to whether there is a high risk of such offending which must prevail. In reaching that conclusion, I will have regard to the information provided in Ms Lang’s reports and which forms the basis for her expert opinion and not merely her conclusions on this issue.
[59] I have considered the outcome of the actuarial risk assessment tools. The STATIC 99-R is, as Ms Lang explains, anchored to the day of release from her most recent sexual offence conviction in 2021. It places Ms Parsons in the highest risk category, being Level IVb (Well Above Average), and with a score in the 97th percentile. The combination of her STATIC-99R and STABLE-2007 scores places her in the Level IVb (Well Above Average) risk category.
[60] I accept these risk assessment tools do not differentiate between the risk of committing relevant sexual offences and any other type of sexual offence. However, as a matter of common sense, where someone has committed a relevant sexual offence in the past, this tool must give some indication of their risk of committing a relevant sexual offence in the future. I cannot ignore the information that statistically
Ms Parsons is at very high risk of sexual reoffending compared with other sexual offenders when deciding her risk of committing a relevant sexual offence.
[61] However, Ms Parsons’ risk cannot just be assessed based on statistical probabilities, and I do not do so. I found the assessment of whether Ms Parsons had protective factors which could prevent her offending to be equally, if not more, useful. Using the Structured Assessment of Protective Factors against Sexual Offending (SAPROF-SO), Ms Lang explained what factors might protect Ms Parsons from further offending and which were not present. The SAPROF-SO identified the following factors as supporting Ms Parsons to desist from offending: her employment, her emotional connection to her mother, and her improved attitude towards rules and regulations. However, those were insufficient in Ms Lang’s view to manage her ongoing risk when regard was had to her low scores on items related to resilience and adaptive sexuality. This was rated as a moderate-high level. The SAPROF-SO indicated that Ms Parsons received a moderate to high level of protection from factors which were linked to the professional support she currently receives with her ESO conditions. However, those protective factors would change if Ms Parsons’ context changed, such as moving from supervised living to living independently.
[62] I also place weight on Ms Lang’s conclusions as to the endurability of Ms Parsons’ risk. She says that while Ms Parsons has been engaged in treatment over the past year, this treatment has not yet directly addressed risk-related needs. Should she be able to address more risk-relevant issues in the future, this could result in the reduction of her risk.
[63] Finally, I have had regard to Ms Lang’s conclusion, which she maintains in her updating report, regarding the type of offending risk Ms Parsons presents:
Given Ms Parsons’ history of offending, if she were to offend again this would likely be in the context of increased emotional dysregulation and negative affect, leading to sexualised coping and deviant sexual fantasy, feeling blocked from meeting her sexual needs and being able to isolate a female child. Her past offending suggests that she may also use a degree of force to gain compliance from any potential victim. Given her most recent convictions she may offend in the context of increased sexual preoccupation and deviant sexual interest by accessing images of child abuse via the internet. Furthermore, considering her behaviour in relation to her breach related
offending, she may make unwanted sexual advances towards female children or adults whom she perceives may be receptive to such advances.
[64] While I acknowledge that accessing child abuse via the internet is not a relevant sexual offence, the risk of her offending against children in particular would involve relevant sexual offending.23 Given the high statistical probability of Ms Parsons sexually reoffending relevant to other sexual offenders, along with a lack of protective factors were she to be shifted from her currently highly supervised situation to minimal supervision, I am satisfied that Ms Parsons would, at this point, be at high risk of committing a relevant sexual offence. Furthermore, I am not satisfied that registration on the Sex Offender Register would materially change that risk. That would require Ms Parsons to be inhibited for offending by the mere fact that she is on the register and must notify the administrators of the register of her personal details and of any changes in her circumstances. At present there is no evidence that anything less than active supervision will have that inhibiting effect on Ms Parsons.
[65] That said, I consider that progress has been made, and it is encouraging to read that the current plan is to transition Ms Parsons to more independent living. That includes transitioning her from Tōruatanga to more independent accommodation in Christchurch. That is proposed to be done over a six-month timeframe. Ms Parsons acknowledges that she would struggle with the lack of social support, saying she has felt well supported in Tōruatanga. While Ms Parsons has support from her mother, she lives in Dunedin, and Ms Parsons needs time to develop a wider network of social support in the Christchurch area.
[66] For these reasons, I am satisfied that Ms Parsons remains at high risk of committing a relevant sexual offence and I confirm the ESO. While I acknowledge it has a punitive element, I also consider Ms Parsons needs that support and it would be setting her up to fail if it was removed abruptly and before Ms Parsons has moved to, and adapted to, a more independent living arrangement. I consider it is important that all parties should be working to support Ms Parsons living more independently while she still has the support of the ESO to fall back on if difficulties arise. A combination of continued employment, better engagement with a wider support network in the
23 See Parole Act, s 107B(2).
community and evidence that her intense sexual drive can be managed, whether through her hormone therapy or her own developing social skills, or a combination of both, should mean the ESO is not extended beyond the end of this period.
Result
[67]The ESO made on 22 February 2017 is confirmed under s 107RA(5).
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To:
A J Bailey, Barrister, Christchurch
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