Chief Executive of the Department of Corrections v Ross

[2023] NZHC 3127

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2023-463-85

[2023] NZHC 3127

BETWEEN

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant

AND

LESLIE PETER ROSS

Respondent

Hearing:	3 November 2023
Appearances:	A Gordon for the applicant B Gloyn for the respondent
Judgment:	6 November 2023

JUDGMENT OF CAMPBELL J

[Application for interim supervision order]

This judgment was delivered by me on 6 November 2023 at 3.00 pm Registrar/Deputy Registrar

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v ROSS [2023] NZHC 3127 [6 November 2023]

[1]    The Chief Executive of the Department of Corrections (Corrections) has applied for an extended supervision order (ESO) in relation to Mr Ross. Mr Ross has already been released from prison. He is subject to release conditions. Those conditions expire on 4 January 2024. Corrections’ application for an ESO will not be determined before then. Accordingly, Corrections now applies for an interim supervision order (ISO) pending determination of its application for an ESO.

Procedural history

[2]    The ESO application was first called on 8 September 2023. Mr Gloyn appeared for Mr Ross. As Mr Gloyn had only just received instructions, the Court granted an adjournment to ascertain whether Mr Ross wished to oppose the application.

[3]    The application was next called on 22 September 2023. By then, Mr Ross had instructed an expert to prepare a psychological report to assist him to consider his position on the ESO application. The ESO application was relisted for 16 February 2024. As Mr Ross’s release conditions were to expire on 4 January 2024, Mr Gloyn accepted that there would need to be an ISO. He said he was awaiting instructions from Mr Ross on interim conditions that had been proposed by Corrections.

[4]    The application was next called on 13 October 2023, to review whether conditions for an ISO had been agreed. Mr Gloyn advised that he had been unable to obtain instructions from Mr Ross and sought a further adjournment. The application was further adjourned to 3 November 2023.

[5]    Unbeknownst to counsel or the Court, prior to that call Mr Ross had, on     29 September 2023, removed an electronic bracelet that he had been wearing as part of his release conditions. A warrant has been issued for his arrest for breach of his release conditions. His whereabouts are presently unknown.

[6]    When the application was further called on 3 November 2023, Ms Gordon, counsel for Corrections, asked that  I  make  an  ISO.  Mr  Ross  was  not  present. Mr Gloyn appeared on Mr Ross’s behalf but had no instructions.

Can the court make an ISO in the absence of the respondent?

[7]    Ms Gordon submitted that I could made an ISO notwithstanding that Mr Ross was not present at the hearing. She referred me to a judgment of Moore J in Chief Executive of the Department of Corrections v Broadbent.1 In that case, the respondent was represented by counsel at a hearing of an application for an ISO, but the respondent was not present, as he did not wish to be at the hearing. Moore J held, after a detailed examination of the provisions of the Parole Act 2002, that a court could make an ISO in the respondent’s absence. His Honour made it clear that his decision was not to be taken as authority for the proposition that an ISO could be made in the respondent’s absence in every case, noting that where the respondent wished to be present at the hearing, special and compelling reasons would be needed before the court could proceed to hear the application in the respondent’s absence.2

[8]    Mr Ross has chosen not to be present and has absconded from his release conditions. I am satisfied that in those circumstances I am able to make an ISO, notwithstanding that Mr Ross was not present at the hearing. I record that Mr Gloyn accepted that I could made an ISO in Mr Ross’s absence.

Should I make an ISO?

[9]    Mr Ross is 52 years old. He has a lengthy criminal history. His relevant convictions include kidnapping in 2019, sexual violation by rape and kidnapping in 2008 and wounding with intent to injure in 1990.

[10]   Corrections’ application relies on a health assessment report from Jo Hallett, a psychologist, dated 18 April 2023. Ms Hallett interviewed Mr Ross. She said that, in addition to the convictions just noted, Mr Ross acknowledged his involvement in a significant degree of undetected offending, including gang-related violence and coercive sex with intimate partners. She assessed him as having a very high risk of committing a relevant violent offence and a high risk of committing a further relevant sexual offence.

1      Chief Executive of the Department of Corrections v Broadbent [2020] NZHC 2496.

2 At [14].

[11]   Before making an ISO, the court must be satisfied, on a provisional basis, that the statutory criteria for making an ESO are established.3  Those criteria are set out  in s 107I of the Parole Act. A court may make an ESO if the court is satisfied, having considered the matters addressed in the health assessor’s report, that:

(a)the respondent 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 respondent will in future commit    a relevant sexual offence;

(ii)there is a very high risk that the respondent will in future commit a relevant violent offence.

[12]   Section 107IAA then sets out matters of which the court must be satisfied before determining that there is a high risk that the respondent will commit a relevant sexual offence or a very high risk that the respondent will commit a relevant violent offence:

(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.

3      Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228.

(2)A court may determine that there is a very high risk that an eligible offender will commit a relevant violent offence only if it is satisfied that the offender—

(a)has a severe disturbance in behavioural functioning established by evidence of each of the following characteristics:

(i)intense drive, desires, or urges to commit acts of violence; and

(ii)extreme aggressive volatility; and

(iii)persistent harbouring of vengeful intentions towards 1 or more other persons; and

(b)either—

(i)displays behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal; or

(ii)has limited self-regulatory capacity; and

(c)displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.

[13]   Ms Hallett’s assessment of Mr Ross is presently untested. However, based on her report (including Mr Ross’s self-reporting of undetected offending) and Mr Ross’s criminal history, I am provisionally satisfied that Mr Ross has had a pervasive pattern of serious sexual and violent offending. I am equally satisfied that Mr Ross presents with both the risks stated in s 107I. In reaching that provisional view, Ms Hallett’s report satisfied me of each of the matters stated in s 107IAA. I record that Mr Gloyn said that he could not point to any material to dissuade me from reaching these provisional conclusions.

[14]I am therefore satisfied that I should make an ISO in relation to Mr Ross.

[15]   Ms Gordon provided me with a list of proposed ISO conditions. Mr Gloyn did not take issue with any of them. I will make an ISO on those conditions.

Result

[16]   I order under s 107FA of the Parole Act that, until the application for an ESO is finally determined, Mr Ross is subject to the following supervision conditions:

(a)The standard conditions set out in s 107JA of the Parole Act.

(b)Mr Ross is to reside at an approved address, or any other address approved in writing by a Probation Officer, and not move from that address unless prior written approval of a Probation Officer has been obtained.

(c)Mr Ross is not to possess, use, or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed by a health professional. He is to submit to alcohol and other drug testing if requested by the Police or a Probation Officer.

(d)Mr Ross is to disclose to a Probation Officer, at the earliest opportunity, details of any intimate relationship which commences, resumes, or terminates.

(e)Mr Ross is to obtain the written approval of a Probation Officer before starting or changing position and/or place of employment (including voluntary and unpaid work). He is to notify a Probation Officer if he leaves his position of employment.

(f)Mr Ross is not to communicate or associate, directly or indirectly, with any person known to him to associate with the Black Power Gang unless prior written approval of a Probation Officer has been obtained.

(g)Mr Ross is not to enter the Waikato District as defined by a Probation Officer in writing unless the prior written approval of a Probation Officer has been obtained.

(h)Mr Ross is to submit to electronic monitoring in the form of Global Positioning System (GPS) technology as directed by a Probation Officer in order to monitor his compliance with any condition(s) relating to his whereabouts.

(i)Mr Ross is to comply with the requirements of electronic monitoring and provide access to the approved residence to the Probation Officer and representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment as directed by the Probation Officer.

(j)Mr Ross is to attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer.

Campbell J