Chief Executive of the Department of Corrections v Robertson

[2014] NZHC 218

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000279 [2014] NZHC 218

CHIEF EXECUTIVE OF

THE DEPARTMENT OF CORRECTIONS

v

TONY DOUGLAS ROBERTSON

Hearing:                   13 and 14 February 2014

Appearances:           A R Longdill for the Chief Executive

A J Holland and S Youn for the Respondent

Judgment:                19 February 2014

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 19 February 2014 at 4.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v ROBERTSON   [2014] NZHC 218 [19 February 2014]

Introduction

[1]      The  Department  of  Corrections  seeks  an  extended  supervision  order  in respect of the respondent, Mr Robertson.  The application is made pursuant to s 107F of the Parole Act 2002.

[2]      The application for the extended supervision order is not opposed.  Both the Department  and  Mr Robertson  called  evidence  from  clinical  psychologists  –  a Ms Tolond  for  the  Department  and  a  Dr  Sakdalan  for  Mr Robertson.     Both psychologists agreed that it is appropriate for the Court to make an extended supervision order.  However, Mr Holland, on behalf of Mr Robertson, and relying on the evidence of Dr Sakdalan, argued that any extended supervision order should only run  for  a  period  of  five  years.    The  Department,  relying  on  the  evidence  of Ms Tolond, contended that it should run for the maximum period permitted by the Act, namely 10 years.

Background

[3]      Mr Robertson  was  born  in  1987.    He  has  an  extensive  criminal  history, starting when he was 16 years’ old in 2003.   He has a number of convictions for assault, aggravated robbery, possession of an offensive weapon, wilful damage, threatening to kill, burglary, receiving and the like.   He also has convictions for breaching conditions of supervision and a community work order.

[4]      Mr Robertson’s index offending occurred in Tauranga over two days, namely on 14 and 15 December 2005.

[5]      On 14 December, he accosted a 12 year-old boy, who was walking home from school, and took his cell phone.   Shortly thereafter, he approached three children, aged six, seven and eight.  He invited them to enter his car, telling them that their mother was at a nearby service station and that she had a present for them. One of the children ran up to his mother, who was in the vicinity.  She approached Mr Robertson who then drove off.

[6]      Shortly before school the next morning, Mr Robertson approached a five year-old girl and her seven year-old brother.  He invited the girl into his car, telling her that her mother was at a nearby beach and that she had a present for her.  The girl got into his car.  Mr Robertson pretended to speak to the girl’s mother by cell phone. He told her brother not to get into the car and drove off.   The brother promptly alerted his teacher, who in turn alerted the police. An extensive search was mounted. At 9.45 am, Mr Robertson was found with the girl a short distance out of Tauranga. The child was on the front seat which had been reclined.  She was upset and crying. In a later interview, the girl stated that Mr Robertson had asked to photograph her in her boxer shorts.  The shorts were later found in the back of the car.  He had asked her to roll on her stomach, touched her underwear and bottom, licked her thigh, and tried to kiss her face.  She had pushed him away and protested.

[7]      Mr Robertson was found guilty following a trial before Keane J and a jury, of seven offences, namely:

(a)       abduction  with  intention  to  have  sexual  connection,  contrary  to s 208(b) of the Crimes Act;

(b)      robbery, pursuant to s 234 of the Crimes Act;

(c)       attempted kidnapping, contrary to s 209(b) and s 72 of the Crimes Act

(x 2);

(d)      doing an indecent act on a child, contrary to s 132(3) of the Crimes

Act (x 3).

[8]      On 4 October 2006, Mr Robertson was sentenced by Keane J.1  A sentence of seven years and six months’ imprisonment was imposed in relation to the conviction for abduction, a sentence of six months’ imprisonment in respect of the conviction on the robbery charge, a sentence of two years and six months’ imprisonment on each of the convictions for attempted kidnapping, and a sentence of two years’ imprisonment

on each of the three convictions for doing an indecent act on a child.   The Court

1      R v Robertson HC Auckland CRI 2005-070-453, 4 October 2006.

directed  that  the  sentences  should  be  served  concurrently.    At  the  same  time, Mr Robertson was sentenced to a six-month term of imprisonment, to be served cumulatively, for offending whilst he was on remand awaiting trial.  Thus, the total sentence imposed was eight years.  Keane J imposed a minimum non-parole period of two-thirds of the total sentence.

[9]      In sentencing, Keane J observed as follows:2

…even  though  there  may  be  no  evidence  that  you  had  an  entrenched deviancy on 14 – 15 December 2005, you were both calculating and determined. You may have offended by robbing AK almost fortuitously. Your real intent… was disclosed when you approached the three children shortly after and attempted to induce one at least into the car only to be frustrated; a stratagem you persisted in the following morning, that time successfully. Your intent was graphically demonstrated by the indecencies disclosed by KM after she was rescued by the police. Everything suggests that you preyed on these children for sexual relief.

It  is  noteworthy  that  Keane  J  declined  a  request  by  the  Crown  to  sentence Mr Robertson to preventive detention, noting that the Court’s ability to impose an extended supervision order upon his release was a relevant factor in determining whether a non-finite sentence was appropriate.3

[10]     Mr Robertson  appealed  his  conviction.     The  appeal  was  dismissed  on

8 August 2008.  The Court of Appeal recorded that it had surveyed the evidence, and that it was completely satisfied that there was abundant evidence which justified Mr Robertson’s conviction on each count.4

The Application

[11]     The  Department’s  application,  together  with  a  psychological  report  from

Ms Tolond, was filed on 18 September 2013.

[12]     At that date, Mr Robertson was still in custody.   He was only released on

11 December 2013.  At the time of the application, Mr Robertson was an “eligible offender” within the meaning of those words as detailed in s 107C of the Act.  The

2 Above, n 1, at [39].

3 At [30].

4      R v Robertson [2008] NZCA 282 at [19].

convictions for doing indecent acts on the child are relevant offences as defined in s 107B(2)(l).  The conviction for abduction with intent to have sexual connection is also a relevant offence.5   The application was made before Mr Robertson’s sentence expired. There is no issue with the timing of the application.6

[13]     There was nothing on the Court file to indicate whether or not Mr Robertson had been served, as required by s 107G(1).   I raised this issue with Ms Longdill, appearing for the Chief Executive.  She confirmed that service had been attended to. Mr Holland advised that service was not in issue.

[14]     Similarly, I inquired from Ms Longdill whether or not the victims of the offending have been notified, as required by s 107H(4).  Ms Longdill advised that there were no victims’ names recorded on the victims’ register, presumably because the victims, or more probably their parents, had decided that they did not wish to have their names recorded.

Extended Supervision Orders

[15]     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  with  committing  sexual  offences  against  children  or  young persons.7

[16]     Pursuant to s 107I(2), a court may make an extended supervision order if, following a hearing, it is “satisfied”, having considered the matters raised in the health assessor’s report, that the respondent is “likely” to commit various relevant offences, which are detailed in s 107B(2), on ceasing to be an eligible offender.

[17]     The word “satisfied” has the same meaning as it does in relation to the imposition of a sentence of preventive detention – in other words, it requires the sentencing court to exercise its judgment.  It is inappropriate to import notions of the

burden of proof, or of setting a particular standard, for example, beyond reasonable

5      Parole Act 2002, s 107B(2)(m).

6      Section 107F(1).

7      Section 107I(1).

doubt.  The word “satisfied” simply requires that the sentencing court makes up its mind, and, on the evidence, comes to a judicial decision.8   The word “likely” used in s 107I(2) must be read in light of s 107I(1), which provides for the purpose of an extended supervision order.9     The jurisdiction to impose an extended supervision order depends upon the risk of relevant offending being both real and ongoing and one that could not sensibly be ignored having regard to the nature and gravity of the likely offending.10

[18]     The effect of an extended supervision order is that a respondent, in respect of whom an order is imposed, will be subject to the standard conditions contained in s 107JA of  the Act.    Further,  the  Parole  Board  can  specify  special  conditions pursuant to s 107K to meet a respondent’s particular risk management needs.  The type of supervision envisaged under that regime includes frequent contact with a probation officer and conditions designed to manage known high-risk situations, such as unsupervised contact with children, or engagement in substance abuse.

[19]     The imposition of an extended supervision order is a penalty.11   An order is likely to result in significant restrictions being imposed on offenders in response to their criminal behaviour. This amounts to a form of punishment.12

[20]     An offender subject to an extended supervision order is not liable to recall, but may be charged with breaching his or her conditions, with a maximum penalty of two years’ imprisonment.13

[21]     The evolution of the extended supervision order legislation, and its passage through  Parliament,  has  been  discussed  by the  Court  of Appeal.14      It  has  been variously contended by counsel in a number of the decided cases that the legislation

is inconsistent with the New Zealand Bill of Rights Act 1990, that it constitutes an

8      McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352 (CA) at [71]–

[75], adopting the reasoning in R v Leitch [1998] 1 NZLR 420 (CA) at 428.

9      Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) at [11];

McDonnell, above n 9, at [76].

10     Belcher, above n 9, at [11].

11     Belcher, above n 9, at [30]–[56].

12     R v Peta [2007] 22 CRNZ 925 (CA) at [12]–[13].

13     Parole Act 2002, s 107T.

14     Belcher, above n 9, at [30]–[56]; Belcher v Chief Executive of the Department of Corrections

(Belcher No 2) [2007] NZCA 174; McDonnell, above n 9, at [114]–[131].

encroachment on civil liberties and that it places offenders at risk of double jeopardy. There has also been strong criticism that the legislation is retrospective.  The Court of Appeal has, to date, declined to make a declaration of inconsistency.  Insofar as I am aware, no one has yet sought such an order in the appropriate way, and the contentions  noted  above  have  not  been  the  subject  of  either  evidence  or  full argument.

[22]     No declaration of inconsistency was sought in the present case and I have proceeded on the basis of the legislation as it stands.  I accept the argument made by Mr Holland that an extended supervision order has the potential to place major restrictions on the freedom of movement and association of Mr Robertson.  Caution is clearly needed and there is an obligation on me to carefully consider the evidence

and explain clearly why the order is being made.15   Notwithstanding that Mr Holland

does not oppose the making of an extended supervision order, I consider that there is an obligation on me to satisfy myself that an order is warranted on the basis of the evidence before me.16    As discussed by the Court of Appeal,17  I have adopted a two-step  approach.     First,  I  have  asked  myself  whether  or  not  an  extended supervision order should be made.  I have then considered the issue of its duration.

Should an Extended Supervision Order Be Made?

[23]     As I have already noted, pursuant to s 107I(2) of the Act, a sentencing court may make an extended supervision order if the court is satisfied that the offender is likely to commit any of the relevant offences referred to in s 107B(2) on ceasing to be an eligible offender.  The Court must consider the matters addressed in the health assessor’s report, as set out in s 107F(2).   Inter alia, that section requires that the report address:

(a)       the  nature  of  any  likely  future  sexual  offending  by  the  offender, including the age and sex of likely victims;

15     Peta, above n 12, at [56]–[57].

16     See, Peta, above n 12, at [57]; Chief Executive of the Department of Corrections v Miki HC Auckland CRI 2005-404-124 11 March 2010; Chief Executive of the Department of Corrections v Peterson HC Auckland CRI 2007-404-0398, 24 April 2008.

17     Peta, above n 12, at [61]; McDonnell, above n 8, at [96].

(b)      the offender’s ability to control his/her sexual impulses;

(c)       the offender’s predilection and proclivity for sexual offending;

(d)      the  offender’s  acceptance  of  responsibility  and  remorse  for  past

offending;

(e)       any other relevant factors.

[24]     I have considered Ms Tolond’s report into Mr Robertson.   Ms Tolond is a qualified registered psychologist, who has been in practise for some 10 years.  She has  completed  numerous  risk  assessment  reports  for  both  the  Court,  and  the New Zealand Parole Board.   She has an undergraduate degree with honours and a Masters degree, both in psychology, and she is registered with the New Zealand Psychological Board.   Clearly, she had the expertise to assess Mr Robertson.   She conducted two lengthy interviews with him, and met him on one additional occasion. She   had   discussions   with   the   departmental   psychologist   who   dealt   with Mr Robertson while he was in custody, and considered a report that that psychologist had   prepared   for   the   Parole   Board.      She   had   telephone   discussions   with Mr Robertson’s mother and maternal aunt, discussions with the principal corrections officer and the case officer, and telephone and email correspondence with the police detective in charge of the case.  She considered the Parole Board assessment reports, a   psychological   assessment   report,   Mr Robertson’s   pre-sentence   report,   the sentencing notes prepared by Keane J, and the police summary of the facts.

[25]     Ms Tolond’s report was comprehensive and careful.   I found it to be of considerable  assistance.    She  detailed  Mr Robertson’s  pattern  of  offending  and concluded that he displays a tendency to use violence, both instrumentally, and reactively.   Having considered Mr Robertson’s criminal history, I agree with that comment.   Ms Tolond considered that Mr Robertson’s move to sexual offending increased the risk he poses to the community. Again, I agree with this comment.

[26]     Ms Tolond noted that Mr Robertson is in denial and that he continues to claim  that  he  has  been  framed  by  the  police.     She  reported  that  he  was

confrontational when the index offending was referred to.  She also noted that his responses at interview were inconsistent with details he had provided to other departmental   psychologists,   and   she  considered   that   he  has   a   tendency  to “impression manage”.

[27]     Ms Tolond used two psychometric instruments to analyse Mr Robertson, the

ASRS test, and the STABLE 2007 test.18

[28]     The ASRS (Automated Sexual Recidivism Scale) tool considers static risk factors, which the offender is unable to change.  Ms Tolond considered that it has clear empirical validation, and  that it has been  demonstrated to have predictive accuracy for sexual recidivism, especially over the longer term.   Using this tool, Ms Tolond assessed Mr Robertson as presenting in the medium–high risk category of reoffending.  The STABLE 2007 tool measures dynamic factors, namely those risk factors that can be changed.  Using this tool, she considered that Mr Robertson is in the  high-risk  category.     She  noted  that  issues  which  were  problematic  for Mr Robertson  include  his  social  influences,  his  limited  capacity for  relationship stability, his hostility towards women, his sense of general social rejection, his lack of concern for others, his impulsivity, his poor problem solving skills, his negative emotionality, his sex drive and sexual preoccupation, his deviant sexual preferences, and his lack of cooperation with supervision.

[29]     Ms Tolond did not use a further tool, the ACUTE 2007 tool.  She considered that this tool was not particularly helpful, because it analyses dynamic risk factors presented by an offender’s living environment.   Given that Mr Robertson was in custody at the time, and because she had limited information about his post-release living environment, Ms Tolond considered that it was inappropriate to use this tool.

[30]     Ms Tolond expressly considered each of the s 102F(2) factors.  Relevantly:

(a)       She  considered  that  should  Mr Robertson  sexually  reoffend,  his victims  were  likely  to  include  pre-pubescent  female  children,  not

known to him, whom he would access through opportunistic means in

18     The ASRS test has been discussed by the Court of Appeal in R v Peta, above n 12, at [17]–[30].

public places.  She considered that he is likely to use deception to gain the children’s compliance, and that any sexual offending could extend from illicit photography of the victim through to indecent assault.  She also expressed the view that the possibility of full sexual intercourse could not be excluded.

(b)She acknowledged that it is difficult to assess Mr Robertson’s ability to specifically control his sexual impulses, because he refused to discuss  these issues  with her.    However,  file information  and  her assessment  of  his  behaviour  led  her  to  conclude  that  he  has  an ongoing difficulty with impulse control generally.   She noted that Mr Robertson admitted a history of susceptibility to impulsivity and poor  behavioural  controls,  and  that  he  has  a  poor  record  of compliance with supervision.   She observed that Mr Robertson was using cannabis at the time of the index offending, and she considered that, if Mr Robertson were to return to substance abuse, it is likely that its  disinhibiting  effects  would  further  reduce  his  already  limited ability to control his impulses.    She noted that a previous psychological  report  recorded  that  Mr Robertson  had  described  an active sex life with his then partner, which entailed sexual intercourse multiple times per day.   On balance, she assessed Mr Robertson’s ability to control his sexual impulses as low.

(c)      She  then  went  on  to  consider  Mr Robertson’s  predilection  and proclivity for sexual offending.  She noted that while there is only one recorded child sexual offence victim, Mr Robertson used a similar modus operandi with other pre-pubescent victims within a short timeframe.  She considered that his index offending was likely to be an extension of his pro-criminal attitudes and behaviours, together with his sexual preoccupation, where he prioritised his needs over the needs  of  others,  and  vulnerable  victims  were  opportunistically selected for his immediate gratification.  She noted that his criminal history shows  that  he has  been  involved  with  recidivist  antisocial

offending, which has remained unabated despite various sanctions, including several periods of imprisonment.

(d)She  recorded  that  Mr Robertson  does  not  accept  that  he  sexually offended against the victim, and that he has not accepted any responsibility for his actions.  He has manifested no empathy for the victims, and he became agitated when he was questioned in regard to these  matters.    She  noted  that  Mr Robertson’s  lack  of  remorse, penchant for externalising responsibility, and ongoing sense of entitlement, appear to be part of an enduring personality pattern, whereby he blames and holds others accountable for his behaviour.

Overall, Ms Tolond signalled there is a high risk that Mr Robertson will engage in relevant sexual offending on his release.  She considered that his sexual reoffending is likely to place female children who are unknown to him, including those in public places, at risk of abduction, indecent assault, or further sexual offences.

[31]     I have also considered the psychological report obtained by Mr Robertson. That report was from Dr Sakdalan.

[32]     Dr Sakdalan used four risk assessment instruments – STATIC 99, STABLE

2007,  ACUTE  2007,  and  SVR20.     Using  the  STATIC  99  test,  he  assessed Mr Robertson’s risk of sexual recidivism as being in the moderate–high category. Using  the  STABLE  2007  test,  he  assessed  that  Mr Robertson’s  risk  of  sexual recidivism is in the moderate–high risk group.  Using the SRV20 tool, Mr Robertson was assessed as being at a moderate risk of sexual offending, and using the ACUTE

2007 tool, Mr Robertson was assessed as being in the “moderate priority” category. Overall, it was Dr Sakdalan’s opinion that Mr Robertson is at a moderate risk of sexual recidivism.

[33]     Dr Sakdalan also considered each of the relevant s 107F(2) matters:

(a)       Given his assessment of Mr Robertson’s risk profile, he considered

that  Mr Robertson  would  be  likely  to  offend  against  female  pre-

pubescent girls.  He considered that if Mr Robertson reoffends in the future,  that  he  will  most  likely commit  offences  against  potential victims he has met in public places or in unsupervised situations.

(b)He noted that Mr Robertson does not have a history of deviant sexual interest or an established diagnosis of paedophilia, and that he was

18 years’ old at the time of the index offending.   He observed that Mr Robertson   is   now   26   years’  old,   and   he   considered   that Mr Robertson now displays some degree of emotional maturity.  He recorded Mr Robertson’s assertion that he has low sexual drive, and that he is not sexually preoccupied.  He also considered, again from Mr Robertson’s statements, that he is less impulsive than he was when he was younger.  However, he noted that Mr Robertson continues to deny his sexual offending, and that he still has limited insight into his sexual offending issues.

(c)      In considering Mr Robertson’s predilection and proclivity to sexual offending, he noted that Mr Robertson has no record of previously offending in a similar manner, and that there is no reported history of sexually inappropriate or abusive behaviours.

(d)He noted that Mr Robertson continues to deny his sexual offending, and that he has not demonstrated any responsibility or remorse. However, he considered that this factor is not predictive of sexual recidivism,  but  is  rather  a  responsivity  issue.     He  noted  that Mr Robertson  has  now  expressed  a  willingness  to  attend  a  sex offender treatment programme if required.  However, he recorded the reservation that his motivation to engage in treatment is more external than internal, and expressed the hope that his motivation might change once he starts to attend the programme.

[34]     Again, Dr Sakdalan was extremely well qualified.  However, I did not find his report as helpful as that of Ms Tolond.  I note the following:

(a)      Dr Sakdalan   did   not   have   the   same   range   of   information   as Ms Tolond.     His  report  was  based  principally  on  his  two-hour interview with Mr Robertson;

(b)It  is  clear  that  Mr Robertson  was  much  more  cooperative  with Dr Sakdalan than he was with Ms Tolond.  Both psychologists agreed that reports can be manipulated by the answers offenders give.  I have no  doubt  that  Mr Robertson  was  seeking  to  procure  a  favourable report  from  Dr Sakdalan.    I  note  Ms  Tolond’s  observations  that Mr Robertson  seeks  to  “impression  manage”.     In  my  view,  the impression which Mr Robertson created with Dr Sakdalan was false. It  is  inconsistent  with  contemporaneous  events,  which  I  refer  to shortly;

(c)      Dr Sakdalan agreed that it was possible that his assessment of the risk of recidivism that Mr Robertson poses, using the ASRS tool, may have been conservative;

(d)Dr Sakdalan used the various assessment tools, but then overlaid the answers yielded by those tools with what he called his “structured clinical judgment”.   That is, of course, a highly subjective exercise which it is difficult to properly assess.  As the Court of Appeal has warned, there are dangers in failing to follow standardised procedures and  in  failing  to  recognise  scoring  criteria  for  recognised  risk measures.     Pseudo-scientific  validity  can  otherwise  be  lent  to

assessments which are not properly based.19

[35]     Regardless of the description of the level of risk posed by Mr Robertson, Dr Sakdalan agreed in cross-examination that Mr Robertson is likely to commit a relevant offence on being released, and that he meets the criteria for an extended

supervision order.

19     Peta, above n 12, at [67].

[36]     There are other contemporaneous events which I have considered.  It became clear from Ms Tolond’s evidence that, on 23 November 2013, two days before he was interviewed by Dr Sakdalan, Mr Robertson became abusive towards corrections staff  when  staff  did  a  cell  search  in  his  cell.    Further,  on  30 November  2013, Mr Robertson became belligerent towards corrections staff, and he abused them.  He stated that if staff “wanted a shitty day, [he] would give it to [them]”.  This occurred because Mr Robertson wanted to use the telephone before he had a shower.   On

5 February  2014,  when  he  was  appearing  in  front  of  Judge  Wade  in  the District Court, Mr Robertson lost his temper and started yelling obscenities at the Judge.  Mr Robertson was seeking bail in relation to a charge that he had breached his Parole Board release conditions. The following exchange took place:

You  might  have  thought  it  would  have  been  sensible  for  any  offender wearing an electronic bracelet with GPS, being told not to go to a particular area, would not go within a mile of it yet alone well within it.  [I didn’t even know that park was there, Your Honour].

Yes, Mr Robertson.  [I had no idea that the park was there].  I will also add this, every single time you have appeared, Mr Robertson, you have shown your utter contempt for this Court, [Because you fellas just judging on the fucking shit that I was charged with in the fucking past man] which is also the utter contempt you have for the judicial system.  Get down into custody please.  [I haven’t fucking committed any crime].  Yes, thank you very much Mr Robertson.  [You fucking done me for eight years for a crime I haven’t even fucking committed man].

Finally,  on  13  February  2014,  the  date  on  which  the  application  was  heard, Mr Robertson  was  spoken  to  by  Corrections  Department  staff  regarding  his behaviour.

[37]     All of these matters suggest that Mr Robertson has little or no self control, and that he can be abusive and aggressive.  They throw into doubt the demeanour that Mr Robertson exhibited to Dr Sakdalan and on which Dr Sakdalan relied in large part in preparing his report.

[38]     I also note that Mr Robertson has had difficulty in complying with the release conditions imposed on him:

(a)       On 6 January 2014, Mr Robertson was convicted for breaching his parole conditions by failing to comply with the house rules imposed

by the Prisoners Aid and Rehabilitation Society which was providing him with accommodation.  He was evicted from that accommodation. The  eviction  occurred  because  Mr Robertson  allowed  visitors  not approved by the Society to reside with him overnight.  Mr Robertson was sentenced to six months’ community detention for this offence.

(b)It is also charged that on 16 January 2014, Mr Robertson, despite a previous warning, was in a public park.  The Parole Board required as a condition of his release that he should not enter a public park or reserve or other place where children were likely to congregate, unless he was under direct supervision at the time.  Mr Robertson has denied this breach.  The matter is set down for hearing on 13 March 2014. Mr Robertson is, of course, entitled to the presumption of innocence. I have therefore given the charge itself no weight.  The fact, however, that Mr Robertson faces a charge at all is a matter of concern.  In my

view, this is a matter I am entitled to take into account.20

[39]     Having considered the reports of both Ms Tolond, and Dr Sakdalan, and the other evidence which is available to me, I am satisfied that Mr Robertson is likely to commit one or more of the offences referred to in s 107B.  Specifically, I consider that it is likely that he will commit an indecency on a child under the age of 12 years, and that he will abduct a child for the purpose of sexual connection.  There is also a risk that he may have, or attempt to have, sexual connection with a child under the age of 12 years.

[40]     In  reaching  this  conclusion,  I  note  that  Mr Robertson  has  an  appalling criminal history.   That history has escalated to offending against young children. The  offending  has  extended  to  sexual  offending  against  young  children.    I  am satisfied  that  any  further  sexual  offending  by  Mr Robertson  would  be  likely to involve prepubescent female children, who have been abducted after being deceived into accompanying him.  The evidence compels the conclusion that Mr Robertson is impulsive, and that he is unable to control his anger and aggression.  Mr Robertson’s

self reports, his previous offending, and his recorded discussions with departmental

20     Parole Act 2002, s 107H(2).

psychologists, suggest that he has a strong sexual drive and impulses.   There is nothing, other than his own assertion to Dr Sakdalan, to suggest that he is able to control his sexual impulses.  Everything else points to the opposite conclusion.  The assessment tools used by both Ms Tolond and Dr Sakdalan suggest that there is a real risk of recidivism by Mr Robertson.  The index offending and the evidence suggest that Mr Robertson has a predilection for, and a proclivity towards, sexual offending. He has shown no remorse, and undertaken no treatment for such offending.  Indeed, he continues to deny it.  He has a history of failing to comply with court orders, and recent  events  suggest  that  his  behaviour  has  not  changed  in  this  regard.   As  a non-familial child sex offender, Mr Robertson belongs to a group at a greater risk of sexual recidivism than those convicted solely of offences against family members. He is now aged 26 years.   However, research into the effect of age upon release identified those aged between 18 and 40 years as having a higher recidivism rate than any other age group.

[41]     There is a real and ongoing risk that cannot sensibly be ignored, having regard  to  the  nature  and  gravity  of  the  likely  offending.    In  my  judgment,  an extended supervision order should be made.

Duration of Extended Supervision Order

[42]     Section 107I(5) provides as follows:

107I    Sentencing court may make extended supervision order

…

(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.

…

[43]     Ten years is the maximum period permitted under the Act.   21

[44]     The factors identified in s 107I(5) demonstrate the protective focus of the statutory scheme set out in Part 1A of the Act.   This was emphasised in Chief Executive of the Department of Corrections v McIntosh,22 where this Court (sitting as a full Court) stated as follows:

… Our function in terms of s 107I(5) is to decide the minimum period required for the purposes of the safety of the community in light of the level of risk posed, the seriousness of harm which might be caused and the likely duration  of  the  risk in  Mr McIntosh’s  case. These criteria  underline  the protective focus of the present jurisdiction. 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.

The latter part of this paragraph was expressly approved by the Court of Appeal in both Belcher23 and Peta.24

[45]     I have already commented on the levels of risk assessed by the experts. While there was a measure of disagreement between them, I am satisfied that, in reality, they were not far apart.  Ms Tolond assessed the risk posed by Mr Robertson as being slightly higher than that assessed by Dr Sakdalan.  However, Dr Sakdalan acknowledged that there were some debateable factors which could have affected his use of one of the assessment tools – the STABLE 2007 tool.  He acknowledged that it  is  possible  that  Mr Robertson  should  be  assessed  as  being  at  a  high  risk. Regardless of the classification, for the reasons noted above, I am satisfied that Mr Robertson poses a very considerable risk indeed.  It is also clear that if he is to reoffend, the harm that would be caused to his victims would be very serious indeed. Sexual offending on prepubescent girls will invariably have a major impact on their physical and psychological wellbeing.

[46]     The likely duration of the risk is harder to assess.  Dr Sakdalan suggested that a five-year term would suffice, but he accepted that the risk posed by Mr Robertson

21     Parole Act 2002, s 104I(4).

22     Chief Executive of the Department of Corrections v McIntosh HC Christchurch CRI 2004-409-

162, 8 December 2004.

23     Belcher, above n 9, at [108].

24     Peta, above n 12, at [11].

will not change, unless he undergoes treatment.  The following exchange took place in cross-examination:

Q.        But in order for his risk that you’re assessing today to change in five years’  time,  it’s  going  to  require  some  positive  action  by Mr Robertson, do you agree?

A.       That’s correct.

Q.        So in suggesting to the Court that a five year order is the minimum required  to  protect  the  safety  of  the  community,  we’re  in  effect asking the Court to place confidence that Mr Robertson is going to lower his risk under that threshold within the five year period, aren’t we?

A.       Can you, so what’s the question?

Q.       He meets the criteria today. A.     Yes, that’s correct.

Q.       In five years’ time, if nothing changes, he’ll still meet the criteria.

A.       That’s correct.  If nothing changes.

[47]     I have little or no confidence that Mr Robertson will undergo treatment.  It is noteworthy that  he was  in  prison  for a number of  years.   He did  not  undergo treatment while he was in custody.  That was the obvious time for him to undertake treatment, given that it would have affected the likelihood of his release on parole. He remains in denial, and except for his assertion to Dr Sakdalan that he is now prepared to undergo treatment, there is nothing to suggest any change in motivation by him.

[48]     Mr Robertson’s   proclivities,   as   demonstrated   by   the   index   offending, combined with his failure to take any steps to date to ameliorate the risk he poses, give  cause  for  considerable  concern.    The  minimum  term  appropriate  for  the purposes of the safety of the community is ultimately dependent on the risk posed by Mr Robertson reducing, so that the Court can be satisfied that he is no longer likely to commit a relevant offence.   There is nothing concrete to suggest that the risk posed by him will lessen in the short–medium term. As matters stand, Mr Robertson has been assessed by a number of statistical tools and by two clinicians as posing either a moderate or high risk of recidivism.  Any reoffending is likely to be of a serious   sexual   nature,   causing   significant   harm   to   vulnerable   individuals.

Mr Robertson has consistently denied his offending, and he has not participated in any form of treatment.  He has been uncooperative with efforts to manage his risk. Other than Mr Robertson’s belated and self-serving assertion to Dr Sakdalan, there is nothing to suggest that the risk posed is likely to change.   The position is very similar to that discussed in McDonnell.25

[49]     As a result, I conclude that the maximum term of 10 years should be fixed for the extended supervision order.  That is the minimum period required, on the facts as they currently present, to protect vulnerable members of the community.

[50]     I observe that were I to impose a five-year term, or some other term less than the maximum, the Court would not be able to extend the length of the extended supervision  order,  unless  either  Mr Robertson  consented  or  Mr Robertson  was convicted of an offence of breaching a condition of the order, in the 12 months preceding any application for extension.26   There are, however, no such constraints if Mr Robertson  seeks  to  cancel  the  extended  supervision  order,  consequent  on successfully  completing  a  rehabilitation  course.     Either  Mr Robertson,  or  the Chief Executive, could apply to the Court to cancel the extended supervision order on the ground that Mr Robertson is no longer likely to commit a relevant offence.27

Further,  either Mr Robertson, or the Chief Executive, could apply to the Parole

Board to vary the conditions attaching to the order.28     The power to apply for a discharge, or to vary the conditions, provide both an incentive and a safeguard for Mr Robertson, and in imposing the maximum term, I am entitled to take comfort from these provisions.29

Orders

[51]     For the reasons set out in this judgment, I direct that Mr Robertson be made subject to an extended supervision order for a term of 10 years.

25     McDonnell, above n 8, at [112].

26     Parole Act 2002, s 107N(2).

27     Ibid, s 107M.

28     Ibid, s 107O(1).

29     Woodhouse v Chief Executive of the Department of Corrections [2011] NZCA 333 at [33].

[52]     Mr Robertson   was   released   from   custody   on   11   December   2013, notwithstanding that the statutory release date was 14 December 2013.  The statutory conditions of release, and the conditions imposed by the Parole Board, run from the statutory release date, as opposed to his actual release date.  Hence, the conditions imposed run through until 14 June 2014.  Counsel have filed a joint memorandum recording that any extended supervision order should commence on 15 June 2014.  I agree that this is appropriate.   The Court has power to fix the date on which an

extended supervision order comes into force.30   I direct that the extended supervision

order in respect of Mr Robertson is to take effect as from 15 June 2014.

Wylie J

30     Parole Act 2002, s 107L.