Chief Executive of the Department of Corrections v Rimene
[2015] NZHC 2721
•4 November 2015
ORDER THAT NEITHER THE PSYCHOLOGICAL REPORT NOR THE CONTENTS OF THE COURT FILE ARE TO BE SEARCHED OR PUBLISHED APART FROM THE PRESENT REASONS FOR JUDGMENT
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2015-441-17 [2015] NZHC 2721
BETWEEN THE CHIEF EXECUTIVE OF THE
DEPARTMENT OF CORRECTIONS Applicant
AND
MOANA PATRICK RIMENE Respondent
Hearing: 19 October 2015. Submissions filed on 22 and 30 October
2015
Appearances:
F E Cleary for the Applicant
R Fairbrother QC for the RespondentJudgment:
4 November 2015
JUDGMENT OF MUIR J
This judgment was delivered by me on Wednesday 4 November at 5.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel:
E R Fairbrother QC, Barrister, Napier
Solicitors:
F E Cleary, Crown Solicitors, Napier
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v RIMENE [2015] NZHC 2721 [4
November 2015]
Introduction
[1] This is a contested application for a second Extended Supervision Order
(ESO) against the respondent.
[2] Mr Rimene was formerly the subject of an ESO made by Gendall J on 8
March 2005.1 His Honour’s judgment comprehensively reviewed Mr Rimene’s history of sexual offending against young girls including convictions in 1977 for rape and abduction of a girl under 10 (for which he was sentenced to six years’ imprisonment), and 1992 convictions for indecent assault on a female under age 12, indecent assault on a female aged 12-16 and three charges of unlawful sexual connection with a female under 12 (for which he was sentenced to 11 years’ and nine months’ imprisonment).
[3] His Honour concluded (at [29]) that Mr Rimene posed, “a real and ongoing risk of committing sexual offences against children or young persons”, and imposed an ESO of eight years and six months. In so doing he noted Mr Rimene’s age (he was then 59) and his health (reported angina and respiratory problems). He noted the evidence of the Department’s clinical psychologist, Ms Rutherford, that Mr Rimene fitted within a small sub-group of offenders for whom advancing age did not diminish risk, but commented:
That may be so from a psychological assessment or statistical prediction, but age cannot always be irrelevant because otherwise someone aged 75 or 80, fitting into the particular sub-group, would be subject to a 10 year extended supervision order.
[4] Mr Rimene has been convicted and imprisoned on seven occasions for breaches of the former ESO. On three such occasions two or more breaches were before the Court. The first such offending was in April 2005 with the most recent such offence in November 2013.
[5] 2014 amendments to the Parole Act 2002 (the Act) allow the applicant to seek successive supervision orders provided the criteria in s 107I(2) are met. Relying on
1 Chief Executive of the Department of Corrections v Moana Patrick Rimene HC Wellington CRI-
2004-485-174, 8 March 2005.
those provisions, the applicant seeks a further order for 10 years’ extended supervision.
[6] The respondent does not challenge the fact that he is an eligible offender, that he has been convicted for breaches of parole conditions, that the application was commenced before the expiry of the existing ESO or procedural issues following the making of the present application.2
[7] The respondent is now either 69 years or 70 years of age.3 It is accepted that he suffers from congestive heart failure and end stage renal disease. He also suffers hearing and sight impediments.
The Statutory framework
[8] ESOs are governed by the Act, the relevant sections of which, for present purposes, are ss 107I and 107IAA. They provide as follows:
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
2 Mr Rimene has been the subject of interim supervision orders made pursuant to s 107FA of the
Act pending the hearing of this application.
3 His criminal and traffic conviction history identifies him as born on 2 September 1945 but the report on which the application is based identifies the date of birth as 25 September 1946.
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. (6) Repealed.
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.
…
The issues
[9] Having regard to Mr Fairbrother QC’s responsible concessions,4 the critical issue is whether, for the purposes of s 107I(2)(b) there is a high risk Mr Rimene will
in future commit a relevant sexual offence.
4 Summarised in [6].
[10] If the Court is so satisfied then the relevant issue is the duration of the ESO. The applicant seeks the statutory maximum of ten years. Mr Fairbrother submits that five years or less would be appropriate having regard to the defendant’s age, multiple disabilities and an “overriding sense of fairness”.
The law
[11] The making of an ESO is discretionary. The discretion is exercised within a structured legislative environment requiring proof of a persuasive pattern of serious sexual or violent offending (which is not an issue in this case) and a high risk of re- offending which will only be demonstrated if the cumulative requirements of s 107IAA(1) are satisfied.
[12] In Belcher v Chief Executive of the Department of Corrections,5 a Full Court of the Court of Appeal concluded that an ESO is a form of punishment and as such engages the provisions of ss 25 and 26 of the New Zealand Bill of Rights Act 1990. The Court held that the jurisdiction to grant an ESO depended upon:6
… the risk of relevant offending being both real and ongoing and one that cannot sensibly be ignored having regard to the nature and gravity of the likely re-offending.
[13] That is essentially the test which Gendall J applied and regarded as satisfied in his 2005 judgment.
The evidence
[14] In support of its application, the applicant relied on an extensive report from a registered psychologist Dr Branko Coebergh. Mr Coebergh was the subject of cross-examination. No evidence was called for Mr Rimene.
[15] I summarise Dr Coebergh’s evidence in relation to each of the statutory criteria in s 107IAA.
5 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507, (2006) 22
CRNZ 787 (CA).
6 At [11].
Section 107IAA(1)(a) Intense drive, desire or urge to commit a relevant sexual offence
[16] Dr Coebergh regarded this criteria as satisfied. He concluded that there was strong evidence of the persistence over time of the respondent’s sexual deviancy as well as his urge to sexually offend against children. He emphasised the results of the respondent’s plethysmographic testing in 2001 which indicated strong sexual response to child stimuli in post-treatment testing, which showed limited change in his ability to modify his sexual arousal to children.
[17] Under cross-examination he stated:
… During the course of our conversation he did acknowledge that there were occasions when he had continued to have sexual thoughts when he saw what he described as young women and that, and he agreed that there was some corresponding degree of physical arousal associated with that.
Of particular concern to Dr Coebergh was a reported incident in 2008 in which Mr Rimene is said to have failed to disclose his criminal history to staff at a mental health drop in centre where he was observed befriending a woman, giving her child confectionary and money and patting the child’s head in the context of 10-15 observed interactions with mother and child. Dr Coebergh noted that such behaviour fitted one of Mr Rimene’s most common treatment-identified sexual offending pathways – grooming victims accessed through adults.
[18] The applicant submits that this incident can be viewed as evidence of the persistence of the respondent’s urges to have prohibited contact with young children notwithstanding the imposition on him of specific restrictions designed to eliminate that risk. In so doing the applicant says the incident speaks to the intensity of the respondent’s drive or desire to commit rape and sexual offences.
[19] While acknowledging Dr Coebergh’s ability to receive such evidence under s 107F(3) of the Act, Mr Fairbrother was critical of the quality of it. He says it amounts to a serious allegation with little to substantiate it.
[20] Although I accept the hearsay nature of the evidence I cannot dismiss it. It was reported by staff at a mental health centre and is consistent with Mr Rimene’s
previous modus operandi. The fact that he was apparently prepared to engage in the reported conduct despite the existence of an ESO and specific prohibitions on child contact satisfies me that, at least in 2008, there remained an intensity of drive, desire or urge to commit offending against young girls sufficient to satisfy the criteria in s 107IAA(1)(a).
Section 107IAA(1)(b) Has a predilection or proclivity for serious sexual offending.
[21] In this respect Dr Coebergh concluded:
It is the writer’s opinion that a proclivity for serious sexual offending remains an ongoing issue for Mr Rimene, despite his denial during the health assessment. This judgment is consistent with the outcome of his assessment using the VRS-SO Dynamic Risk Factors of measuring sexual deviancy – offence planning, sexually deviant lifestyle, sexual offending cycle and deviant sexual experiences.
[22] Of particular concern to Dr Coebergh was the respondent’s self-assessment in October 2014 that he would score his risk of re-offending against girls as being “a 3” on a scale of zero to 10. The respondent contrasted this with what he described as an attraction “out of control”, “10 out of 10” in earlier life.
[23] In cross-examination Dr Coebergh stated that another way of looking at the respondent’s self-assessment was to postulate a 30 per cent risk of re-offending which he described “pretty high” in terms of self-assessment. He noted that this self- reported level was strikingly similar to the results which the Department’s own formal risk assessment tools had reached.
Section 107AA(1)(c) Has limited self-regulatory capacity
[24] Dr Coebergh concluded the respondent has a low capacity for self-regulation, in so doing referencing the numerous breaches of the ESO committed over the past
10 years. In his assessment, the respondent had achieved only limited to moderate success in developing skills to manage his risk of re-offending, notwithstanding the treatment he had received.
[25] Significantly, Dr Coebergh reported the respondent’s telling remark that the
previous ESO had helped prevent him from re-offending.
Section 107AA(1)(d) Displays either or both a lack of acceptance for responsibility or remorse for past offending or an absence of understanding for or concerns about the impact of his or her sexual offending on actual or potential victims
[26] Dr Coebergh’s conclusion in this respect was that although the respondent demonstrated acceptance of his previous offending this was coupled with limited remorse and that:
It was notable that Mr Rimene’s comments about the negative impact upon him of the sentences incurred for his sexual offending far outweighed the references he made to the suffering of victims.
[27] In his view the respondent had an under-developed understanding of the impact of his sexual offending upon the victims and only a limited ability to empathise with and feel concern for them.
Applicant’s submissions
[28] Relying on this evidence Ms Cleary submitted that the relevant statutory tests were satisfied and that a further ESO should be made. In a submission accepted by Mr Fairbrother, she said that the principal issue before the Court was whether on account of the respondent’s age and/or infirmity it could be said that he posed a “real and ongoing risk” that could not sensibly be ignored.
[29] Ms Cleary emphasised the evidence which was before Gendall J in terms that the respondent fell within a small sub-category of offenders where advancing age did not correspond with a reduction in risk of sexual recidivism and that the reported incident in 2008 re-enforced that conclusion.
[30] While acknowledging that the respondent suffers from congestive heart failure and end stage renal failure for which he receives dialysis, Ms Cleary submitted that the only way in which his ill-health could properly be taken into account is if the Court were satisfied that it represented a physical impediment to further offending against children. She emphasised Dr Coebergh’s evidence that the respondent’s health was not such as to preclude offending.
[31] Ms Cleary also emphasised the fact that while physical frailty may impede an offender who targets adult victims, the same cannot be said of those, like the respondent, whose proclivities include the very young (his youngest victim in relation to the offending between 1987 and 1991 was four years old).
[32] Ms Cleary referred to Dr Coebergh’s evidence under cross-examination about whether the respondent’s age and infirmity might limit his ability to form romantic attachments with adult females and therefore gain access to their children. This was in terms:
Well there are different ways of accessing children if, if someone does want to sexually offend, not all the nature of the relationship with the guardian or parent isn’t always a romantic one. You know it can be any type of relationship where there is a basis for if the parent trusts the individual and as you get older people tend to attribute a certain degree of safety and trust for people who appear more elderly and possibly less well so there is certainly a possibility that a different type of trust in a relationship could be established that would still allow the victim access.
[33] She also emphasised Dr Coebergh’s evidence that the respondent had gained access to children by utilising his standing as a Kaumatua and as a popular member of his whanau and the fact that by his own admission he had used “all available mechanisms” of deception during the period of his offending to gain access to his victims and that he was a “spider in a web”.
[34] In summary, the applicant submitted that the respondent’s long history of offending, his acknowledged ongoing sexual attraction to young girls, the multiple ways in which he had accessed victims in the past and the comparatively recent evidence of grooming all highlighted the fact that the respondent’s advancing age and declining health provided no assurance against his risk of re-offending.
Respondent’s submissions
[35] Mr Fairbrother commenced his submissions with the valid point that, although an ESO cannot be made in the absence of the evidence of a qualified professional, neither should such evidence be “adopted per se”.
[36] He submitted that 24 years had now elapsed since the last of the respondent’s index offending and that this demonstrated a person who had learned to live successfully with what he described as “an inherent character defect of considerable proportion”. While acknowledging that 12 years of that 24 year period had been spent in prison he referred to the fact that manifestations of expression of inherent
risk can still occur in a prison environment.7
[37] He further submitted the respondent was not in denial and his self-assessment of risk fitted comfortably with the professional assessments. He emphasised also the fact that the sequential breaches of the ESO demonstrated an absence of cunning or a desire to “conduct himself covertly to avoid … scrutiny”.
[38] Finally Mr Fairbrother emphasised the fact that little emphasis appeared to have been given by Dr Coebergh to the respondent’s cultural identity and that efforts should be made to try to locate the respondent appropriately within his iwi setting.
Discussion
[39] As the Court of Appeal stated in R v Peta,8 an ESO has the potential to place major restrictions on the freedoms of movement and association of an offender. To that end, although a Judge is entitled to accept the conclusions in a health assessment report, particularly in a case where no contrary evidence has been presented, he or she should be prepared to examine it critically. It is not an exercise in “rubber stamping”.9 In a case where there is a history of serious sexual offending, where no countervailing factors are identified and the risk assessment measures suggest a high risk of re-offending against children, the Court held in Peta that a Judge’s reasons can be comparatively brief. However, a critical assessment is still required.
[40] I am satisfied on the basis of the evidence previously summarised that the criteria specified in s 107IAA(1)(a)-(d) inclusive are made out and that there is,
7 Referring to Chief Executive of the Department of Corrections v Harbor HC Auckland CRI-
2005-404-179, 17 July 2006. Mr Harbor faced a misconduct charge while in prison for possession of child pornography found on a floppy disc in his cell.
8 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627.
9 At [7].
accordingly, a high risk that the respondent will, in future, commit a relevant sexual offence. I am satisfied therefore that a further ESO should be made.
[41] I base that conclusion primarily on:
(a) The respondent’s self-assessment in terms of his risk of re-offending, equating closely to the results indicated by the applicant’s formal risk assessment tools.
(b) The respondent’s confirmation to Dr Coebergh that the previous ESO
had helped prevent him from re-offending.
(c) The respondent’s limited self-regulatory capacity as demonstrated by the extensive number of ESO breaches over the last 10 years.
(d)What I accept, despite the limitations of the evidence, was grooming behaviour in 2008.
(e) The respondent’s identification as part of a subset of offenders where risk does not diminish with age.
(f) Dr Coebergh’s conclusion (based on advice from the respondent’s physician and on the respondent’s own self-report) that he is physically capable of offending against a child. That must be so, even if the principal risks are now digital violation and/or indecent assault.
(g)The fact that the respondent’s age and infirmity may, counter- intuitively, provide an increased opportunity for offending by virtue of the trust reposed in him.
[42] In coming to those conclusions I have had the benefit, not only of Dr Coebergh’s report, but of hearing him under cross-examination. I considered his evidence measured, properly supported by the formal risk assessment tools applied and adequately reflecting the age and disability issues which the case engages.
Duration of order
[43] The respondent is now approaching old age. He is clearly in ill-health although reporting some improvement as a result of dialysis.
[44] I accept Gendall J’s observation that, although psychological assessment may indicate continued risk irrespective of the respondent’s age, nevertheless it is a factor in assessing the appropriate duration of an order.
[45] This case has some similarity with that of Department of Corrections v Broderick10 where the respondent was 65, assessed as being of high risk of sexual offending and again appeared to fall into the sub-group whose risk was unaffected by age. In that case Baragwanath J held:
[19] I infer that it is the opinion of the psychologist that Mr Broderick resides in that sub-group. Nevertheless, a report of 5 Decemeber 2006 from Mr Broderick’s GP records that he suffers from severe heart disease and chronic respiratory disease, his long term prognosis is poor, his condition could worsen at any time, especially if exposed to stress or infection.
[20] I am satisfied that it would be disproportionate to expose this man of Mr Broderick’s age and health to a term in excess of five years. That is in my opinion the appropriate minimum period and there will be an order accordingly.
[46] In my assessment, an appropriate term in this case is likewise five years. In the event the applicant considers the respondent poses a real and ongoing risk of committing sexual offences against children or young persons prior to conclusion of that period, a further application can be made. It may, however, be that the respondent’s health has so far deteriorated by that time that he is either in care (with an appropriate level of supervision) or that he is no longer considered to pose a relevant risk.
Result
[47] I make a further ESO in respect of Moana Patrick Rimene pursuant to s 107I
of the Parole Act 2002:
10 Department of Corrections v Broderick HC Whangarei CRI-2005-454-12, 13 December 2006, Baragwanath J.
(a) The term of the order is five years.
(b) The date upon which the order comes into force is 9.00 am on
Thursday 5 November 2015.
(c) The terms of the ESO are the standard terms provided for in s 107JA of the Act together with such further terms as the Parole Board may impose pursuant to s 107K of the Act.
(d)Mr Rimene must report, in person, to a probation officer at the Community Probation Service, 60-70 Station Street Napier, not later than 72 hours from this order coming into force.
(e) Until such time of reporting Mr Rimene remains on bail subject to existing conditions (refer my Minute of 19 October 2015).
[48] In relation to Mr Fairbrother’s submission that efforts should be made to locate Mr Rimene appropriately within his Iwi, I note advice that his current probation officer is of the same ethnicity. I make no orders in this respect but draw
Mr Fairbrother’s submission to the attention of the appropriate authorities.
Muir J
7