Chief Executive of the Department of Corrections v Parsons

[2017] NZHC 229

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000156 [2017] NZHC 229

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

v

PIERRE JOHN PARSONS

Hearing:	8 February 2017
Appearances:	P A Currie for the Applicant M Starling for the Respondent
Judgment:	22 February 2017

JUDGMENT OF NATION J

[1]      The Chief Executive of the Department of Corrections filed an application for an extended supervision order (ESO) and an interim supervision order with intensive monitoring in relation to Mr Parsons.  Those applications were to be first called in Court on 8 February 2017 at 10.00 am.

[2]      The applications were served on Mr Parsons on 23 December 2016.   I subsequently received a memorandum signed by counsel for the Chief Executive and Mr Starling as counsel for Mr Parsons.

[3]     Mr Parsons consented to the interim order remaining in force until the substantive hearing date for the applications.  Counsel confirmed that a hearing date

for the substantive proceedings of 26 April 2017 at 2.15 pm was suitable.

DEPARTMENT OF CORRECTIONS v PARSONS [2017] NZHC 229 [22 February 2017]

[4]      Following  the  filing  of  that  memorandum,  the  Court  made  an  interim supervision order with intensive monitoring that was to remain in force until the substantive application was determined on 24 April 2017.

[5]      The application was called before me on 8 February 2017.

[6]      At the hearing on 8 February 2017, Mr Starling confirmed, in the presence of Mr Parsons, that he was consenting to the making of an ESO for a further term of ten years.  The only change he sought was that the hours of the effective curfew, which currently require Mr Parsons to be at a specified residence, be varied from 8.00 pm to 8.00 am daily, to between 10.00 pm and 8.00 am.  The variation would make it easier for Mr Parsons to be taken to appointments and to places such as the Court if this is required.

[7]      At the time the applications were called, Mr Parsons provided to the Court, and thus to the Department of Corrections, a personal statement as to certain conditions which he would like the Department of Corrections to review, and his own aspirations as to what he would like to achieve over the next five years and then over ten years.

[8]      The Court is required to give a judgment with reasons as to why an ESO is necessary.1     Subsequent to the hearing on 8 February 2017, Ms Currie has filed submissions for the applicant that have assisted me in this regard.

[9]      I am satisfied the Court has jurisdiction to make an ESO, pursuant to s 107 of the Parole Act 2002.

[10]     Mr Parsons is susceptible to this application as an “eligible offender” as defined in s 107C.  He was sentenced in 1995 to concurrent sentences of three years and 11 months’ imprisonment for abducting and sexually violating a girl aged 12 years.  He is not subject to an indeterminate sentence.  He has not ceased, since those

convictions, to be subject to an ESO.

1      R v Peta [2007] NZCA 28.

[11]     The grounds which must be established for the Court to make an ESO are set out in s 107I:

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.

(3) To avoid doubt, a sentencing court may make an extended supervision order in relation to an offender who was, at the time the application for the order was made, an eligible offender, even if, by the time the order is made, the offender has ceased to be an eligible offender.

(4)   Every  extended  supervision  order  must  state  the  term  of  the order, which may not exceed 10 years.

(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.

[12]     In assessing whether or not there is a high risk of committing a relevant sexual offence, the Court is to be guided by the factors set out in s 107IAA(1):

(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.

[13]     The use of the word “displays” in terms of an ESO application, as with the word “exhibits” in s 13(2), does not mean that those traits and behavioural characteristics must be externally manifested at the time of the application, particularly where the evidence may be derived from self-reporting.2

[14]     The Court may receive and take into account any evidence or information that it thinks fit.3

[15]     I have considered the summary of facts, reports and sentencing notes relating to Mr Parsons’ index offending when he was 18 in June 1995, psychologists reports prepared in connection with the application for the initial ESO, the judgment of Chisholm J when he made an ESO on 31 May 2006, the notes of the District Court Judge  who  on  14  September  2016  sentenced  Mr  Parsons  on  two  charges  of breaching that ESO, and detailed reports of a Department of Corrections registered psychologist, Zoe Wilton, of 8 December 2015 and 9 November 2016.  Both these latter reports included the psychologist’s assessment of s 107I issues.

[16]     The index offending of 1995 involved the rape of a 12 year old female school pupil.   It involved planning and serious violence, apart from the rape itself, to the young girl.  Mr Parsons has said, when being interviewed for these latter reports, that this offending arose in the context of his being at the sports stadium where the assault occurred to “cross-dress”.   Mr Parsons reported that, when his victim was

unconscious, he took her clothing for his own cross-dressing purposes and, when he

2      Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at 26-28.

3      Parole Act 2002, s 107H(2).

saw her naked, became sexually aroused.   Subsequently, he has attempted to seek appropriate consenting adult sexual experiences but he has shown more recently that he has been unable to restrict himself to legally appropriate behaviour.   He broke Christchurch Residential Care house rules in inviting a prostitute to the residence.  In December 2015 he violated an approved route for him to travel to work to approach a 15 year old girl wearing a school uniform.  He did so again in May 2016 giving her a note with his mobile telephone number, asking her to purchase underwear and other female items.  These incidents led to his being imprisoned for breaches of the conditions of his ESO.

[17]     I am satisfied Mr Parsons has demonstrated an intense drive, desire or urge to commit “relevant sexual offences”, namely sexual offences against a child or young person.   There is also evidence that Mr Parsons has an ongoing “predilection or proclivity for behaviour which could result in serious sexual offending”.

[18]     Mr Parsons’ initial behaviour when on parole in 2005 and 2006 showed more marked  risk-related  concerns  leading  to  his  recall  to  prison.    Subsequently,  Ms Wilton credited him with demonstrating an improved ability to manage and comply with the conditions of his ESO and then parole-associated conditions.   She also referred to his effort while subject to his ESO to develop and maintain employment, social activities and manage finances within constraints, and consistent expressions of his motivation and determination to avoid future sexual offending behaviour.  To his credit, Mr Parsons has voluntarily engaged in successive intensive treatment programmes for sexual offending behaviour and individual treatment across several years duration.  He pleaded guilty to the charges associated with his 1995 offending.

[19]     The breaches of his ESO that occurred at the end of 2015 and in early 2016 have justifiably reduced earlier hopes and confidence that he would have the ability to sufficiently regulate himself or his sexual behaviour in an independent living situation.

[20]     He has shown that he has limited empathy or understanding how his risky behaviour in more recent situations would be perceived by the individuals he has propositioned.   He initially denied he was involved in the recent breach offences

when questioned by the Police.  He also attributed 50 per cent of the responsibility for those recent breaches to Christchurch Residential Care and Probation, who he perceived as having failed to meet his needs.

[21]    Ms Wilton noted that, while Mr Parsons does not present as callous or intentionally attempting to cause distress to others, he has significant deficits in his emotional empathy for actual or potential victims of his offending.  I accept that his recent  breach  offences  indicate he still  has  a long noted deficit  with  emotional empathy.

[22]   I am satisfied that Mr Parsons has displayed a lack of acceptance of responsibility or remorse for past offending and an absence of understanding for or concern about the impact of his sexual offending on actual or potential victims.

[23]     There  is  evidence  that  Mr  Parsons  is  subject  to  increasing  stress  and frustrations associated with his gender issues.  Those issues for him were a factor in his earlier serious sexual offending with a young person.  In the personal statement which Mr Parsons provided to the Court, he has highlighted his wish to start the transitioning process to transgender and his strong wish to be supported in that process.  He wants to be living as a woman but in a relationship with a woman who accepts him as a transgender.   I accept those strong desires on his part put him at high risk of sexual recidivism if he is in a living environment where he experiences stress, has access to potential victims and perceives his sexual and cross-dressing wishes are being blocked or thwarted.

[24]     To reduce those risks and for Mr Parsons to be able to live successfully and independently,  it  is  essential  that  he  be  subject  to  an  extremely  structured  and stepped rehabilitation plan which could incorporate his gender identity transition wishes.  In consenting to the extension of the ESO and in emphasising the need for him to be able to address those issues, Mr Parsons has accepted that there will be a particular risk of offending in this regard if he is not subject an ESO.

[25]     Ms Wilton has adopted a multi-method assessment strategy in assessing the risk of further sexual offending.  Applying that approach and having regard to the

matters mentioned by Ms Wilton, I consider there is still a high risk that Mr Parsons will in future commit a relevant sexual offence.

[26]     I am thus satisfied that the applicant has established the grounds required for this Court to make an ESO.

[27]     The term of ESO may not exceed ten years.4   Under s 107I(5):

(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.

[28]     I accept the submission for the applicant that there is at present a high risk that Mr Parsons will in future commit a relevant sexual offence, that this is a real and ongoing risk to the community and the risk is likely to remain for a significant period of time.  I accept that the particular risks associated with Mr Parsons are likely to remain stable over an extended period of time.  For that reason and for the protection of the community, a further extension of the ESO should be for a term of ten years. It was clear from the advice the Court was given by his counsel and from Mr Parsons’ personal statement that he accepts the extension should be for this term.

[29]     I note that the Court may cancel the ESO at any time during the term of the order where the Court can be satisfied an offender is no likely to commit a relevant offence.5

[30]     When the Court makes an ESO, it may, at the same time, on an application by the Chief Executive made under s 107IAB(1), make an order requiring the Board to impose an intensive monitoring condition on the offender.  Such a condition would require Mr Parsons to be accompanied and monitored for up to 24 hours per day by an individual who has been approved to undertake person-to-person monitoring by

the Chief Executive or his delegate.  The order must specify the maximum duration of the intensive monitoring condition, which can be no longer than 12 months.

[31]     There is no statutory test as to when intensive monitoring should be required. I  accept  however  that,  with  Mr  Parsons’  high  risk  of  further  relevant  sexual offending, there is a need for external controls to mitigate that risk and that close monitoring is required.  In all the circumstances, he should be subject to an intensive monitoring condition for 12 months from the date of this judgment and the ESO

coming into force.6

[32]     An application has been made by the Chief Executive for an interim order, pursuant to s 107IA, imposing on Mr Parsons special conditions that the Board might impose under s 107K.  Such an order can be imposed only if I am satisfied there may not be sufficient time before the ESO comes into force for the Board to determine what (if any) special conditions should be imposed on the offender before

the ESO comes into force.7

[33]     The conditions which the applicant seeks were attached to the application served on Mr Parsons.   Through counsel, Mr Parsons consented to the making of those conditions but requested the change in respect of the effective curfew hours. That change is acceptable to the applicant and is reflected in the conditions which I am asked to put in place.

[34]     Pursuant to s 107IA, the High Court has jurisdiction to impose conditions when it makes an ESO.   Pursuant to s 107IA(2), the Court may impose special conditions on an interim basis only if satisfied there may not be sufficient time, before the ESO comes into force, for the Board to determine which (if any) special conditions should be imposed on the offender.

[35]     Pursuant to s 107L, an ESO can come into force when the order is made or at a different date specified in the order.

[36]     Ms Currie has submitted the ESO should come into force on the day it is made.

[37]     The interim order imposing special conditions takes effect when the ESO

comes into force.

[38]     Because it is necessary and appropriate for the Court to impose the special conditions on an interim basis and that can be done only when the ESO comes into force, it is appropriate that the ESO will come into force on the date of this judgment and thus the date I make the relevant orders.

[39]     Subject  to  the  provisions  of  s  107L(2A),  these  special  conditions  will continue for three months from the date of the orders.

Conclusion

[40]     Accordingly, I make the following orders:

(a)  from the date of this judgment, Pierre John Parsons is to be subject to an extended supervision order. That order is for a term of 10 years;

(b)  the Parole Board is required to impose an intensive monitoring condition on Pierre John Parsons.  That intensive monitoring condition is to be of

12 months duration from the date of these orders;

(c)  Pierre John Parsons is to be subject to the special conditions attached to this  judgment.    Subject  to  s  107L(2A), these  special  conditions  will continue for three months from the date of these orders.

[41]     Mr Parsons is to be brought to the Court to have these orders served on him.

Solicitors:

Raymond Donnelly & Co., Christchurch

Michael Starling, Barrister, Christchurch.