Chief Executive of the Department of Corrections v Roche
[2015] NZHC 1350
•10 June 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-16 [2015] NZHC 1350
CHIEF EXECUTIVE OF
THE DEPARTMENT OF CORRECTIONS
v
CHRISTOPHER DAVID ROCHE
Hearing: 9 June 2015 Appearances:
P Currie for Applicant
M Starling for RespondentJudgment:
10 June 2015
JUDGMENT OF MANDER J
[1] The Chief Executive of the Department of Corrections (the Chief Executive) has made application for Mr Christopher Roche to be subject to a further extended supervision order (ESO) pursuant to s 107F of the Parole Act 2002 (the Act).
[2] An interim ESO was made by Nation J on 5 March 2015, pending the outcome of the Chief Executive’s substantive application. Mr Roche does not oppose the Chief Executive’s application. It remains, however, for the Court to be satisfied that the statutory conditions permitting the making of such an order have been established.
[3] When the Chief Executive’s application was called for hearing on 9 June
2015, at which Mr Roche was present, his counsel confirmed the application was not opposed. I indicated that I had read the material filed in support of the application, including the health assessor’s report and was satisfied the statutory preconditions
for making the order had been made out. As a result, I made an ESO for a period of
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v ROCHE [2015] NZHC 1350 [10 June
2015]
10 years to commence on 2 November 2015 (Mr Roche’s statutory release date). It
is now necessary for me to set out my reasons for making the order and its duration.
Background to application
[4] The Chief Executive’s application was filed on 18 February 2015. Mr Roche’s existing ESO was due to expire on 8 December 2014, however, he was taken into custody on 1 December 2014. At that time, he was remanded in custody on other offending, for which he was sentenced on 19 March 2015 to 22 months’ imprisonment.
[5] While an individual subject to a current ESO is in custody, the order is suspended.1 At his release date, therefore, Mr Roche will still have seven days of the existing ESO to complete.
[6] At the time the Chief Executive made his application, it was not clear whether he would receive a custodial sentence. Taking a cautious approach, the Chief Executive made application for an interim order, which, as I have previously mentioned, was granted on 5 March, with the consent of Mr Roche. That order had effect up until the substantive hearing on 9 June, at which time I made the further ESO.
[7] As a result of Mr Roche receiving a custodial sentence on 25 February 2015, the original ESO remains suspended, and the need for the interim supervision order became redundant while he remained in custody.
Eligible offender
[8] Mr Roche was sentenced by Wild J on 17 December 2002 to five years’ imprisonment on a charge of indecent assault on a boy under 12 years of age.2 Prior to the expiry of that sentence, Mr Roche became the subject of an ESO made by
Pankhurst J on 6 August 2007.3
1 Parole Act 2002, s 107P.
2 R v Roche HC Wellington S4866/02, 17 December 2002.
3 Chief Executive of Department of Corrections v Roche HC Christchurch CRI-2007-409-000138,
6 August 2007.
[9] On 29 May 2009, Mr Roche was sentenced in the District Court to 15 months imprisonment for breaches of the ESO and for other offending.4 As mentioned, on 1
December last year, having absconded in breach of the existing ESO, he was remanded in custody, and, on 19 March, sentenced to imprisonment for other offending.5
[10] Mr Roche, therefore, having been sentenced to imprisonment for a relevant offence, namely indecent assault on a boy under 12 years of age, and not having, since that conviction, ceased being subject to an ESO or a sentence of imprisonment (whether for a relevant offence or otherwise) is an eligible offender, as defined under s 107C of the Act.
The respondent’s relevant history
[11] Mr Roche was born on 1 August 1979. He is now 35 years of age. The ESO
made by Pankhurst J in August 2007 related to sexual offending committed between
1993 and 2002. In 1996, he was sentenced in relation to offences of indecent assault upon a boy and unlawful sexual connection with a boy, for which he received 15 months’ imprisonment. In 2000, he appeared in relation to seven offences involving boys or youths. Several of his victims were under 12 years of age. A sentence of 18 months’ imprisonment was imposed. Notably, in the course of a previous assessment, Mr Roche reported that his offending exceeded that represented by his convictions. He reported that his victims ranged in age between 7 to 15 years of age and included females. In December 2002, the five year term of imprisonment was imposed in respect of one offence of indecent assault upon a boy.
[12] At the time the ESO was imposed, Mr Roche presented with an extensive history of diverse non-sexual offending, including convictions for drugs, driving, dishonesty, violence, weapons, and non-compliance related offences. He received a range of sanctions, including fines and imprisonment, none of which has mitigated
his criminal behaviour.
4 Police v Roche DC Christchurch CRI-2009-009-2625, 29 May 2009.
5 Police v Glanville DC Christchurch CRI-2014-009-5871, 19 March 2015 (under his alias).
[13] While subject to the ESO, Mr Roche continued to offend. He has since been convicted of breaching the ESO on six occasions, and has been convicted of a further
11 offences involving drugs, driving, and possession of firearms. He has received two further terms of imprisonment during this period, and is presently subject to a
22 month sentence.
[14] Prior to his arrest, Mr Roche had absconded and was at large for over two months. At the time of his arrest, he was located at the residence of a female acquaintance who had two young daughters. Police seized his computer and found objectionable images.
The Chief Executive’s application
[15] The purpose of an ESO is to protect members of the community from those who pose a real and ongoing risk of committing serious sexual offences.6 The Chief Executive’s application is made on the basis that Mr Roche presents such a risk. He relies on the health assessor’s report, prepared by Ms Amanda Richards, a registered clinical psychologist. She addresses the various matters required to be taken into account by the Act, which I must be satisfied of before an ESO can be made.
[16] Section 107I(2) provides as follows:
(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.
6 Parole Act 2002, s 107I(1).
[17] Section 107IAA provides as follows:
(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.
[18] Mr Roche declined to be interviewed for the purpose of the preparation of Ms Richards’ report, however, she had available to her extensive file material, including some 15 reports completed by various Department of Corrections psychologists. She also reviewed the probation and psychological files, and undertook discussions with various individuals involved in Mr Roche’s management, including his Community Probation Service manager and probation officer.
Previous treatment provided
[19] Prior to the current ESO, Mr Roche was the subject of extensive treatment for his sexual offending. On two occasions, at the age of 17 years, he commenced, but did not complete, the STOP Adolescent programme. In 2005, he commenced and completed treatment at the Kia Marama Special Treatment Unit.
[20] Since the imposition of the ESO in 2007, Mr Roche has attended individual sessions with a departmental psychologist. He has also had extensive involvement with the Kia Marama Maintenance Group while being in the community. His involvement with treatment providers while subject to the ESO has, however, been marked by poor attendance with variable levels of disclosure and engagement. He
has attended and completed treatment as recommended, achieving what is described as an “intellectualised” understanding of his offending behaviour.
Potential to reoffend
[21] For the purpose of Ms Richards’ assessment, she employed a number of actuarial instruments to evaluate the risk of Mr Roche committing further relevant sexual or violent offences while in the community. On the automated sexual recidivism scale (ASRS), Mr Roche has been assessed as in the high risk category. Mr Roche was also found to be in the high risk group on the STABLE-2007 instrument. Current areas of difficulty for Mr Roche include evidence of emotional identification with children, general social rejection, lack of concern for others, impulsivity, sexual preoccupation, sexual deviance, limited access to significant support, and non-compliance with conditions of his sentencing.
[22] Ms Richards observes that Mr Roche’s extensive history of treatment with little evidence of an ability to utilise learning is a further relevant factor in assessing the risk Mr Roche presents. It is noted he has maintained strong interest in male adolescents, suggesting a sexual interest that has been “strongly reinforced” and is “well-established”.
[23] In summary, Ms Richards concludes that Mr Roche’s risk of further relevant
reoffending remains high while he is in the community.
Matters relating to the assessment of risk
[24] Ms Richards has, in her report, addressed each of the factors set out in s 107IAA(1) relevant to the determination of whether Mr Roche presents as a high risk of committing a relevant sexual offence in the future. Her assessment in relation to each of these factors has not been contested.
The offender’s demonstration of an intense drive, desire, or urge to commit a relevant sexual offence
[25] Mr Roche has not expressly stated an intention to sexually reoffend, however, he reports that he remains sexually attracted to adolescent males. In the absence of
Mr Roche’s engagement in an appropriate adult sexual relationship, this statement is evidence of an urge or desire to commit further sexual offences of the type he has previously committed.
[26] Mr Roche has placed himself in the company of younger males in situations where sexual offending can take place. While he is capable of acknowledging the importance and relevance of any safety plans to avoid such situations, this has not prevented him from deliberately choosing to create those situations. An example is his breach in 2008 which involved him planning, and obtaining, access to a young male victim in the absence of adult company.
The offender’s predilection and proclivity for serious sexual offending
[27] Mr Roche has nine sexual offences, all against adolescent and pre-adolescent males. This, coupled with his statement to his probation officer that his ideal partner is an effeminate 14 year old boy is clear evidence of a deviant sexual preference for adolescent boys. Mr Roche is likely to continue to have this proclivity for sexual offending against males under the age of 16 years.
The offender’s self-regulatory capacity
[28] Mr Roche’s sexual preoccupation developed in childhood has persisted over a long period. Despite extensive treatment and support, and notwithstanding extensive monitoring and supervision, he has failed to manage the risk he presents to pre- adolescent and adolescent children. He himself reports a poor ability to control his sexual impulses, and is reported to have few self-management strategies to cope with these sexual impulses. He continues to report a preference for adolescent boys, and has been breached twice for being in contact with male children under the age of 16 years without adult supervision. Despite significant targeted intervention, and notwithstanding Mr Roche’s apparent understanding of the need to adopt coping strategies, he has not demonstrated an ability to implement these strategies to manage his sexual impulses.
The offender’s acceptance of responsibility and remorse for past offending
[29] Ms Richards observes that it is difficult to reconcile Mr Roche’s acknowledged responsibility and remorse for the harm that his offending has caused with his failure to adhere to his ESO conditions. Ms Richards’ opinion is that Mr Roche’s acceptance of responsibility is only superficial. He has demonstrated a lack of willingness to take responsibility for important risk mitigating steps, and his expressed acceptance of responsibility and remorse has not resulted in any significant improvement in his ability to manage the risk he presents, or facilitated a higher engagement with those able to support him in that endeavour.
The offender’s understanding for, or concern about, the impact of his/her sexual
offending on actual or potential victims
[30] Mr Roche’s files record statements of concern by Roche for his victims, however, such statements conflict with other comments by Mr Roche which indicate a considerable lack of insight and understanding of the harm caused by his offending. Mr Roche is of the view that there are positive aspects for his victims resulting from his offending, which appear to contradict any verbalised understanding of the harm caused. It is apparent that he has little genuine insight into the impact of his behaviour, and notably seeks to justify the sexual abuse by maintaining that his victims are not being physically or emotionally hurt.
Any other relevant factors
[31] Mr Roche has continued to use both cannabis and methamphetamine, both of which featured in his previous offending. He has expressed no motivation to abstain, and of concern is the history of Mr Roche providing cannabis to his victims as part of his grooming process.
[32] Ms Richards summarises her assessment as follows:
24It is considered that there is a High risk that Mr Roche will engage in further sexual offending after the termination of his current ESO, (given the structured oversight provided by this sentence) if the above risk factors remain relevant. Any further sexual reoffending would put pre-adolescent and adolescent male children at risk, in particular those who are vulnerable to be groomed due to lack of
adult supervision. Victims would be at risk of offences including indecent assault, or exposure to objectionable material. Offending is likely to occur in the context of Mr Roche perceiving he is free of scrutiny by way of deceit and manipulation of significant supports, or other responsible adults.
Conclusion
[33] I am satisfied, having considered the uncontested matters addressed in the health assessor’s report, that Mr Roche has, or has had, a pervasive pattern of serious sexual offending and that there is a high risk that he will in the future commit a relevant sexual offence. I have come to that determination, satisfied that Mr Roche displays an intense desire or urge to commit further relevant sexual offences and has a proclivity for serious sexual offending. I am satisfied he has limited self-regulatory capacity, and lacks understanding of the impact of his sexual offending on victims. He has not demonstrated genuine remorse for his past offending.
The appropriate length of the ESO
[34] I must now consider the term of the ESO, which must not exceed 10 years.7
The term of the order must be the minimum period required for the purpose of the safety of the community, in light of the level of risk posed by Mr Roche, the seriousness of the harm that might be caused to the victims, and the likely duration of the risk.8
[35] The ESO made by Pankhurst J in August 2007 was for a period of six years. The Chief Executive’s application is that the ESO be made for a 10 year period. Mr Roche does not oppose an ESO of that duration.
[36] The pervasiveness of Mr Roche’s sexual preoccupation is illustrated by his inability, whilst in the community and subject to structured supervision and monitoring, to abide with the current ESO. This sexual preoccupation is central to Mr Roche’s offending. It is reported that he has demonstrated limited regard for its conditions, and has little motivation to take responsibility or avoid engaging in
behaviours that escalate his risk of sexual reoffending.
7 Section 107I(4).
8 Section 107I.
[37] Past breaches of his ESO involve having unsupervised contact with children, and failing to attend a Kia Marama support group. It is noted that Mr Roche needs a high level of monitoring and supervision by the Probation Service, and there is a low standard of engagement and compliance which results in Mr Roche placing himself in potentially unsafe and high risk situations.
[38] Mr Roche’s risk of sexual recidivism is aggravated by his continued use of cannabis and methamphetamine. He continues to demonstrate a preference for associating with, and developing relationships with, adolescents and younger adults. He places himself in environments where access to such persons is easily facilitated. His compliance with supervision is reported to be marked by poor attendance, deceit, and non-disclosure, continuing to seek the acquaintance of, and have sex with adolescents, both boys and girls. He has self-reported having frequent sexual encounters with a male and female, who he reported to be 16 years of age. These are high risk behaviours.
[39] Mr Roche’s conduct while in the community and subject to an ESO does not indicate any reduction in terms of the risk he presents. Disappointingly, there is no demonstrated motivation on his part to address his high risk behaviours, and there is no real reason for optimism that Mr Roche will not need other than intensive supervision in the long term.
[40] Mr Roche presents with an entrenched predilection and proclivity for offending against male children, 16 years of age and under. He has not been able to achieve insight into the impact of his behaviour on his victims, and there has been no improvement in the way he seeks to manage himself, or to engage with others to support him in that endeavour. Coupled with that assessment is the unlikelihood of him benefitting from any further treatment. His future risk will need to be externally managed, because Mr Roche has provided little evidence that he is willing to take responsibility to mitigate the risk that he presents.
[41] Ms Richards has referred to research which indicates that the risk presented
by individuals with Mr Roche’s risk profile remains stable over an extended period
of time. The risk will remain over a 10 year period. Accordingly, I am satisfied that the order should be for the maximum length available under the legislation.
[42] Accordingly, I confirm the orders made, namely:
(a) An Extended Supervision Order for a term of 10 years;
(b) Such order is to commence on 2 November 2015, being Mr Roche’s
statutory release date.
[43] I also make an order that the Court file relevant to this application (CRI-
2015-409-016) is not to be searched without leave of a Judge of this Court.
Solicitors:
Raymond Donnelly & Co, Christchurch
Michael Starling, Christchurch
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