Chief Executive of the Department of Corrections v Peterson HC Auckland CRI 2007-404-0398

[2008] NZHC 2274

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-0398

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Applicant

v

PETER CHARLES PETERSON

Respondent

Hearing:         24 April 2008

Appearances: E Harrison for the applicant

B Sellars for the respondent

Judgment:      24 April 2008

(ORAL) JUDGMENT OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Auckland

B Sellars, Public Defence Service, PO Box 90243, Auckland

DEPT OF CORRECTIONS V PETERSON HC AK CRI 2007-404-0398  24 April 2008

Introduction

[1]      This is an application by the Department of Corrections (the Department) for an extended supervision order (ESO) in respect of the respondent, Mr Peterson.  The application is made pursuant to the provisions of s 107F of the Parole Act 2002 (the Act).

[2]      Ms Sellars represented Mr Peterson at the hearing.  Evidence was called on his behalf from a registered  clinical  psychologist.    The  report,  which  had  been prepared for the purpose of his case, indicated that Mr Peterson presented a high risk of re-offending.  The report accepted that an ESO should be made.

[3]      The sole issue for determination in respect of the application is the period of such an ESO.  The Department contended that it should run for a period of ten years. The respondent sought an order of five years duration.  The oral evidence heard in Court this morning from two registered psychologists focussed particularly on the issue of the appropriate application period of the ESO.

The application

[4]      The Chief Executive of the Department may apply to the sentencing Court for an ESO in respect of an offender such as Mr Peterson in the circumstances provided for in s 107F of the Act.  Any such application must be in the prescribed form and be accompanied by a report of a health assessor.  The report must address (without limitation) the matters set out in s 107F(2).

[5]      The application filed by the Department was accompanied by a report dated

17 October 2007 from Mr Anton Ashcroft, registered psychologist, who is a senior psychologist with the Department.   The report addressed the various matters that were required of such a report by s 107F(2)(a) to (e) of the Act.

[6]      A statement from Ms Katrina Casey, the General Manager of Probation and Offender Services with the Department, also accompanied the application.   Her statement established inter alia that Mr Peterson was an eligible offender within the

meaning of s 107C of the Act and that the offences committed by Mr Peterson were relevant offences under s 107B of the Act.   Where an application is filed by the Department, the Court is required to hold a hearing at which it may take into account any evidence or information that it thinks fit for the purposes of determining the application:  see s 107H(2) of the Act.

Purpose of ESO

[7]      The circumstances in which the Court may make an ESO are set out in s 107I of  the  Act.    That  section  also  addresses  the  purpose  of  an  ESO  as  being  the protection of members of the public.  Section 107I(1) provides:

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 sexual offences against children or young persons.

[8]      The jurisdiction to make an ESO is contained in s 107I(2) which provides:

(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(2), that the offender is likely to commit any of the relevant offences referred to in section 107B(2) on ceasing to be an eligible offender.

[9]      The phrase “satisfied” has the same meaning as in relation to the imposition of a sentence of preventive detention: see R v Leitch [1998] 1 NZLR 420 (CA) at 428:

The need to be “satisfied” calls for the exercise of judgment by the sentencing Court. It is inapt to import notions of the burden of proof and of setting a particular standard, eg beyond reasonable doubt. As this Court said in R v White (David) [1988] 1 NZLR 264 at p 268 with reference to s 75(2), “The phrase ‘is satisfied’ means simply ‘makes up its mind’ and is indicative of a state where the Court on the evidence comes to a judicial decision. There is no need or justification for adding any adverbial qualification . . .”.

[10]     In Chief Executive of the Department of Corrections v McIntosh HC CHCH CRI 2004-409-162 8 December 2004, John Hansen and Panckhurst JJ, applied that

interpretation of the term “satisfied” to the ESO regime set out in s 107I.  According to  the  Court  of  Appeal  in  Belcher  v  Chief  Executive  of  the  Department  of Corrections [2007] 1 NZLR 507 as confirmed by the Court of Appeal in R v Peta [2007] 2 NZLR 67, the issue for decision is normally whether “the risk of reoffending [is] both real and ongoing and one that cannot sensibly be ignored having regard to the nature and gravity of the likely reoffending”.

[11]     If an order is granted, the length of the ESO must, by virtue of s 107I(5) of the Act, be the minimum period required for the purposes of the safety of the community in the 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]     I  agree  with  the  submission  made  by  Ms  Harrison,  on  behalf  of  the Department, that protection of the community is the guiding consideration.   The focus is on managing the risk of future offending.   It is true that an ESO may properly  be  compared  with  an  indeterminate  sentence  where  an  offender  is potentially subject to conditions and liable to be recalled for life.  The focus of an ESO is not punishment of the offender but protection of the community through risk management and rehabilitation.   The important element of protection of the community was referred to in Belcher at [11].

[13]     With reference to the Court of Appeal decision of Peta, the Court considered the  scope  of  potential  conditions  that  the  Parole  Board  imposed.     At  [13] Glazebrook J, giving the judgment of the Court, stated:

As the imposition of ESOs through the criminal justice system involves significant restrictions (including detention) on offenders and they are imposed in response to criminal behaviour, ESOs amount to punishment: see Belcher at [49]. Given this, it is perhaps surprising that more offenders have in the past not called their own evidence with regard to s 107F(2) factors (particularly of the individualised risk factors) when they seek to challenge the imposition of an ESO.

[14]    The critical question then is whether the Court is satisfied that, having considered  the  matters  addressed  in  the  health  assessors  report  and  any  other evidence before the Court, the offender is likely to commit any of the relevant offences referred to in s 107B(2) on ceasing to be an eligible offender.

[15]     As already noted, the Department has sought an ESO for a period of ten years.  This is the maximum period permitted under the Act: see s 107I(4).  But the period of any ESO must be determined by the Court against the requirements of s 107I(5) already referred to.

[16]     Those  factors  clearly  demonstrate  the  protective  focus  of  the  statutory scheme in Part 1A of the Act.  This feature is emphasised in McIntosh, where at [27] the Court stated:

…Put bluntly, orders are not to be made for the minimum period required to facilitate treatment, rather, for the minimum period required to achieve protection of vulnerable members of the community.

[17]     The Court of Appeal expressly approved this comment in Belcher at [108].

The application

[18]     With respect to the respondent, the application noted that on 17 November

2004 Mr Peterson was sentenced to  four  years’  imprisonment  on  the  following charges:

a)       One charge of indecently assaulting a boy under the age of 16;

b)        One charge of doing an indecent act on a boy under the age of 16; and c)     One charge of sodomy.

[19]     Those charges related to a 14 year old boy whom Mr Peterson had befriended through a shared interest in stock cars.  When passing sentence in that case, Wild J stated that:

In terms of aggravating of concerning features, Mr Peterson, I see the following.  First, this was premeditated offending to a greater or lesser extent on all three occasions.  It had the common feature of your preying on the complainant with the inducements of cigarettes, alcohol, and so on, and alcohol featured particularly on the sodomy charge. …

[20]     Wild J also noted that Mr Peterson continued to deny his offending and showed a lack of remorse.

[21]     The application clearly establishes that the offences are relevant offences for the purpose of an ESO.   The application is supported by the report of a health assessor, Mr Ashcroft, to which more detailed reference is required.

Reports of health assessors

Mr Ashcroft’s assessment

[22]     In support of the written report, Mr Ashcroft gave evidence in Court today. His report was produced as an exhibit and advanced by the Department in order to satisfy the requirements of s 107F(2).   The report noted that Mr Peterson was 64 years old.   It discussed the pattern of his many previous offences and referred to previous  psychological  assessments.    Mr  Ashcroft  then  provided  a  summary  in which he noted that Mr Peterson had experienced some difficulties with regard to his sexuality.  He observed that Mr Peterson may have viewed sex with teenage boys below the age of 16 as acceptable due to a belief he was helping them and a view that no offence was committed because it was consensual.

[23]     The  report  also  dealt  with  treatment  that  had  been  made  available  to Mr Peterson.  It referred to his having completed a full 33 week Te Piriti  treatment programme in 2006/2007.  On the topic of potential to re-offend, Mr Ashcroft stated:

During the current health assessment a number of actuarial instruments and consideration of noted clinical risk factors were used in this assessment to establish the probability that Mr Peterson would commit further sexual offences while in the community.  These measures included instruments that assess static and dynamic risk factors for sexual recidivism.  The use of such multi-method assessment strategies has been endorsed as the best approach to permit the determination of convergence among risk factors and to allow the assessment of independent contributions.

[24]     Mr Ashcroft then referred to the first of two tests, the ASRS (Automated Sexual Recidivism Scale) and found that, according to this measure, Mr Peterson was considered to present a high risk of re-offending.  Mr Ashcroft also referred to the STABLE 2000 assessment, which was developed to assess dynamic predictors of sexual recidivism to add value to the assessment of static risk measures.  He noted that the psychological report made in February 2007 rated Mr Peterson’s risk of re- offending, based on the STABLE 2000 measure, as being high and indicated an increased risk of sexual recidivism.

[25]     The reason that Mr Ashcroft referred to the 2007 psychological report was that Mr Peterson did not attend the interview called for the purposes of preparing this report.  Accordingly, Mr Ashcroft was unable to provide evidence from an interview which might have indicated any alteration in the risk factors identified under the ASRS and STABLE 2000 measures.

[26]     The report then listed the various risk factors as follows:

•   The large number of of his previous victims;

•    His first sexual offence occurred when he was an adolescent (15 years), with previous inappropriate sexual behaviours being observed;

•   Beliefs that condone sexual acts with individuals under sixteen;

•    Borderline intellectual functioning increasing the risk of impulsivity and poor problem solving;

•   Poor response to treatment;

•   Poor previous response to supervision/parole;

•   Non compliance with his current parole conditions.

In summary, assessment of Mr Peterson using information on noted clinical risk factors, as well as the ASRS and available information on dynamic risk factors finds support from these multiple sources that there is a high risk of Mr Peterson committing a further relevant sexual offence while in the community.

[27]     The report then directly addressed the risk issues relevant to s 107F(2) of the Act.  In particular: the likelihood of further sexual offending including the age and sex of the likely victims, Mr Peterson’s ability to control his sexual impulses, his

predilection and proclivity for  sexual  offending,  and  the  issue  of acceptance  of responsibility and remorse for past offending.  Finally, in terms of any other relevant factors, Mr Ashcroft stated:

Mr Peterson was assessed as having a high rating on static risk factors using the ASRS.  His previous assessment using the STABLE 2000, a measure of dynamic  risk,  indicated  he  fell  into  the  high  risk  category  of  sexual recidivism and showed high ratings regarding lack of any social support systems  or  an  intimate  partner,  evidence  of  social  loneliness,  a  lack  of concern for others, the presence of deviant sexual interests and attitudes which support sexual offending against children, limited skills in effective emotional regulation and difficulties in problem sovling.

Other risk factors that are present for him include the large number of his previous victims, his early age at first offending, pro sexual offence belief systems, poor response to treatment, and poor previous and current response to supervision/parole.   Mr Peterson also has a below average level of intellectual functioning, which would be likely to exacerbate his impulsivity and poor problem solving abililties.

His current probation officer (15 October 2007) raised concerns that Mr Peterson  has  placed  himself  in  a  higher  risk  environment  for  repeat offending, as he has moved out of his agreed accommodation, has placed himself within ½km of two schools, and a sports ground, and is ‘out and about a lot, at Auckland library’.  Subsequent to this interview, the CPPS Incident  Report  for  13-16  October  2007  indicates  Mr  Peterson  has absconded, and a warrant is out for his arrest.

Risk parameter statement:   Analysis of these risk measures and specific sexual offending factors for Mr Peterson, along with information on his offence pattern supports the following risk parameter statement:

If  Mr  Peterson  continues  (the  following  risk  factors  are  present)  to  be socially isolated, displays a lack of concern for others, displays attitudes which support sexual offending against children, displays limited skills in effective emotional regulation and difficulties in problem solving, and a low compliance to the conditions of his parole, then there is a high probability (high  ASRS  &  STABLE  2000  ratings)  that  he  will  engage  in  sexual offending within five years, with the risk remaining for ten years, that may place underage males from 12 to 15 years, who are strangers to him, or who he gets to know through a shared social interest, at risk of indecent assault, sexual violation, or abduction with sexual intent.

[28]     On the basis of the findings in this report, Mr Ashcroft recommended that the

Court impose an ESO for a period of ten years.

[29]     Ms Sellars, appearing for Mr Peterson, called Mr Olaf Handrick, registered clinical psychologist, as a witness.  He gave evidence in support of the contention that the period for which the Court should impose an ESO was five years, rather than the ten suggested by the Department.   Mr Handrick produced his report dated 28

March 2008, in respect of which he had had the benefit of interviewing Mr Peterson for a total of approximately three hours.

[30]     Mr Handrick concluded that Mr Peterson’s risk of sexual re-offending was high with his risk parameters statement having a “tentative validity of up to five years” on account of the research evidence discussed in his report.   This research dealt with sexual re-offending and the impact of an aging offender population.  At paragraphs 26 to 28, Mr Handrick outlined Mr Peterson’s psychiatric history.   He then added:

There is some  concern  that  should Mr  Peterson receive  a  long  term of extended  supervision  that  his  mental  state  will  deteriorate,  which  may increase his risk of sexual re-offending.

[31]     At paragraph 48, Mr Handrick stated:

In my clinical opinion Mr Peterson’s high risk would translate into imminent and  high  management  and  treatment  needs  but  not  necessary  in  to  a prolonged period of Extended Supervision of 10 years as recommended in a psychological  report  compiled  by the Department  of  Corrections.   Most importantly the quality of the supervision relationship would impact on the duration of Mr Peterson’s risk of re-offending.

[32]     Accordingly, Mr Handrick made a recommendation for a highly managed supervision regime of shorter duration in the context of a 64-year-old displaying behaviour features amenable to treatment and aging.

[33]     Mr Handrick also used the Static-AS measure.   Mr Peterson’s score again indicated a high risk of sexual re-offending whilst in the community.  However, at paragraph 50, Mr Handrick noted that the developer of that measure and other scales cautioned the user that on average the rate of sexual recidivism decreases with age. This was a point that Mr Ashcroft accepted in his evidence as a general proposition. But Mr Ashcroft went on to note that the pool of research relating to offenders of

advancing years was particularly small and accordingly he considered that one had to be cautious about relying on the general proposition.

[34]     On the other hand, Mr Handrick estimated that the rates of recidivism given by actuarial methods could over-estimate rates for older men, being the category of offender to which Mr Peterson belonged.   Mr Handrick, however, recognised the inherent difficulties in applying general findings in the literature to Mr Peterson, given that the research literature is replete with findings from larger samples and samples of sex offenders in their youth and middle years.  At paragraph 56 of his report, Mr Handrick stated:

Mr Peterson’s pattern of offending is evidence of sexual deviation, also called  Paraphilia  in  the  Diagnostic  and  Statistical  Manual  of  Mental Disorders (DSM IV).   This refers to a relatively stable pattern of sexual arousal to inappropriate stimuli.  In Mr Peterson’s case his sexual offending indicates the presence of a particular paraphilia’s, namely paedophilia, as demonstrated by his persistent choice of a child as sexual object and by his apparent inability to stop this behaviour despite the distress, anxiety and fear of discovery.  It should be noted that sexual deviance in combination with psychopathy is considered as one of the most robust predictors for future sexual offending.   However a general decline in arousal responses were noted in most recent research, conducted by Barbaree et al.  There are good reasons to question the notion that sexually motivated behaviours of any type,  paraphilic  or  conventional,  would  continue  unabated  throughout  a man’s middle years and into old age.  Such an expectation is at variance with the known facts of human endocrinology, specifically, findings concerning testosterone and age.  Numerous studies have established that bio-available testosterone peaks in early adulthood and thereafter decreases with age through the remainder of the life span.

[35]     Mr Handrick was of the opinion that the biological changes that accompany ageing should be considered when assessing the likely duration of risk presented by Mr Peterson.  From there, Mr Handrick opined that an ESO of five years, coupled with a highly effective management and supervision regime, would offer a greater probability of compliance from Mr Peterson.

[36]     In conclusion, Mr Handrick noted that Mr Peterson’s declining health and increasing age meant that a shorter period of an ESO with more intense supervision would be appropriate.

[37]     With reference to s 107I(5) of the Act, the key issue for the Court is what is the minimum period required for the purposes of the safety of the community in the light of the factors mentioned.   During the hearing of the evidence, the statutory requirements were referred to Mr Ashcroft.  In light of the three factors in s 107I(5) and the high level of risk presented by Mr Peterson, Mr Ashcroft was asked whether the Court might responsibly determine a minimum period for the ESO of eight years. Mr  Ashcroft  responded  in  the  affirmative,  adding  that  “there  is  a  degree  of uncertainty here and I think the possibility of eight years is a reasonable term given that uncertainty”.   When asked, based on his evidence, whether he would see a minimum period of eight years as being required, Mr Ashcroft added that “for the safety of the community”, he would.

[38]     A similar discussion took place with Mr Handrick.  He was asked about the various factors that might influence the duration of Mr Peterson’s high level of risk. The notes-of-evidence record his evidence at page 12, lines 11 – 26 as follows:

…I took a starting point of 5 yrs because in my clinical opinion the risk assessment tool of Mr Ashcroft the Stable and Acute … beyond professional doubt justify 5 years.  Going further up between 4 to 8 yrs there is statistical uncertainty … additional clinical judgment involved to estimate the risk. Coming from the point mentioned before, the  acceptance  of a  extended supervision order is also quite important, if someone rejects the extended supervision order and chooses to re-offend despite a lengthy supervision order nothing is achieved in terms of protecting the victim therefore from a procedural point of view I choose the duration of 5 years.  Having heard Mr Ashcroft’s argument there is no strong argument against it to extend it to 8 yrs for example given that Mr Peterson has a chance to demonstrate he is able to comply with the supervision conditions, further data gather during that process by applying the Stable and Acute every year.

[39]     The question was then put: “if it were eight years it would still be open to

Mr Peterson to apply for a cancellation?”  Mr Handrick then responded:

… exactly and during that time data can be gathered using the Stable and Acute and given my understanding it is a standard procedure during an extended supervision order and dynamic risk factors which are changeable either to increase or decrease the risk are getting collated in a systematic way and would allow Mr Peterson to apply for a cancellation if he demonstrates he is able to benefit from that intervention or the Dept of Corrections to

apply for extension for a further 2 yrs if Mr Petersonn poses still an ongoing high risk.

Discussion

[40]     It is important to recognise that, when considering the length of any such “minimum period” for an ESO, the Court should appreciate the restrictive features of such an order.  The Court of Appeal in Peta stated at [56]:

An ESO has the potential to place major restrictions on the freedom of movement and freedom of association of an offender: see at [12] above. This makes it even more important than in the ordinary course of cases for a Judge, when imposing an ESO, to explain clearly to the offender why such an order is being made. This entails more than a mere reference to the health assessor’s report. More importantly, however, a health assessor’s report should not merely be rubber stamped…

[41]     The Court of Appeal went on to discuss the role of the Court at [57] as follows:

A Judge is, of course, perfectly entitled to accept the evidence of a health assessor,  particularly  in  a  case  where  no  contrary  evidence  has  been presented.  It must, however, be explained why the evidence was accepted and why that leads, on an individualised assessment, to the conclusion that the statutory test for the imposition of an ESO is met. In a case where there is a history of serious sexual offending, where no countervailing factors are identified,  where  the  [Automated  Sexual  Recidivism  Scale]  and  [Sex Offender Needs Assessment Rating] assessments and any individualised risk factors suggest  a  high  risk of  re-offending against  children,  the Judge’s reasons can be relatively brief.  …

[42]     Having   carefully   considered   the   contents   of   the   reports   from   both Mr Ashcroft and Mr Handrick and the evidence of each given in Court today, I conclude that Mr Peterson is likely to commit relevant offences on ceasing to be subject to any release conditions or from the sentence expiry date.  I accept the views expressed by Mr Ashcroft in his report and in his evidence that Mr Peterson does pose a real and ongoing risk of committing sexual offences against children and young  persons,  particularly  young  boys  in  the  age  group  12  to  16  years. Accordingly, the making of an ESO is necessary to protect members of the community from him.

[43]     In terms of the length of such order, I consider that the evidence in the reports and the passages from the evidence referred to above provide clear support for an ESO of eight years.  I base this assessment upon the risks posed by Mr Peterson to children and young persons in the community, the seriousness of the harm that might be caused to such persons as potential victims and what I assess, based on all the evidence  before  me,  as  being  the  likely duration  of  the  risk.    In  reaching  this decision, I have taken into account the three factors in s 107I(5) of the Act.

[44]     Whilst there might well have been a case for an ESO of ten years duration, nevertheless, I must take into account the fact that the statutory direction in s 107I(5) of the Act is that the term of the order must be the minimum period required for the purposes of the safety of the community.  Bearing in mind Mr Peterson’s age and the various risk reducing factors referred to in the evidence, I consider that a period of eight years fulfils the statutory requirement.

[45]     In  fixing  the  period  at  eight  years,  I  note  that  s  107I(6)  of  the  Act contemplates the possibility of successive ESO applications, and also that an extension of an existing order is possible under the provisions of s 107N of the Act, provided that the period of the orders concerned does not exceed ten years.  In Chief Executive  of  the  Department  of  Corrections  v  Taha  (2006) 22 CRNZ 453 the duration of the order was fixed at five years. Although the term of the order had not been fixed by reference to the availability of an extension, Panckhurst J noted at [38] that “their existence provide[d] comfort against the possibility of regression…”. This is the same point that was made by Mr Handrick in his evidence quoted at [39] above.

[46]     There is also the possibility that in the future, Mr Peterson might be able, with the intervention of the Probation Service, to make changes to his life.  Should he do so, it is open for him, where supported by the appropriate material, to make an application for the ESO to be cancelled: see s 107M of the Act.

Result and start date for the ESO

[47]     For the reasons set out above, I find that an ESO should be imposed on Mr Peterson for a period of eight years.  The start date for the ESO should be today’s date.

[48]   Ms Harrison for the Department did not seek any special conditions. Accordingly, I direct that the standard conditions in s 107JA of the Act are to apply.

[49]     The Department did not seek any order for costs and no order is made.

Stevens J