Chief Executive of the Department of Corrections v Skudder
[2016] NZHC 1717
•26 July 2016
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2015-441-000042 [2016] NZHC 1717
BETWEEN THE CHIEF EXECUTIVE OF THE
DEPARTMENT OF CORRECTIONS Applicant
AND
ANDRE TIPI RANGI WIREMU SKUDDER (AKA SCHUDDER) Respondent
Hearing: 26 July 2016 Appearances:
F E Cleary for Applicant
D Allan for RespondentJudgment:
26 July 2016
JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Napier
Copy to: D Allan, Hamilton
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v SKUDDER [2016] NZHC 1717 [26 July 2016]
Application
[1] The Chief Executive of the Department of Corrections applies for an Extended Supervision Order (ESO) under the Parole Act 2002 (the Act) against Mr Skudder.
Background to Mr Skudder’s offending
[2] Mr Skudder is 47 years old. His first offending was in 1985 in the Hastings Youth Court. He was 16 years of age at the time. Mr Skudder has convictions for violence (5), numerous traffic offences (39), dishonesty (13), breaching of conditions imposed by the Court (7), failure to answer bail (4), drug offending (4), breach of a non molestation order, and one conviction for possession of an offensive weapon.
[3] The most serious offending which brings Mr Skudder before the Court today and for which he was imprisoned was four counts of rape on 16 February 2001 and a further four counts of rape on 2 March 2001. The victim in each case was the same. Mr Skudder was also convicted of a further count of a male assaults female on both occasions. The convictions followed a jury trial.
[4] In sentencing Mr Skudder Chisholm J described the offending in the following way. On 16 February 2001 the complainant went to a bar with a female friend. There she met Mr Skudder and an associate. She had known Mr Skudder for many years. The meeting was not pre-arranged. The complainant drank with Mr Skudder and his associate. Her friend went home and eventually a point arrived where Mr Skudder indicated to the complainant she would need to scull her drink because curfew time had arrived or was approaching and that she would be dropped off at her friend’s place. The complainant’s evidence was that by the time she got in the car she couldn’t see properly, her head was ringing, she wanted to pass out, she couldn’t speak, all of which were sensations she hadn’t experienced before. By the time the car arrived at Mr Skudder’s flat (not at the complainant’s friend’s home as she expected) her condition was such she could not get out of the car unassisted.
[5] She was invited to Mr Skudder’s flat for coffee. She had to be assisted up the
stairs. Once in the flat she leaned out of the window to get air. The stereo was
playing very loudly. Mr Skudder picked her up and threw her on the bed. She resisted and called for help but her calls were drowned out by the music. At one stage she pulled Mr Skudder’s hair and he slapped her. Mr Skudder then asked his associate to hold her down. He assisted while her pants were removed. The associate was asked by Mr Skudder whether he wanted to stay or go and at that stage the associate asked if he was doing the right thing – words to the effect of “Are you sure bro”? When the complainant tried to escape her head was pushed into the pillow. While she was being raped by Mr Skudder she passed out. Her evidence was that she couldn’t breathe. She woke up to find that the associate was raping her. She grabbed his hair and the associate asked Mr Skudder to help him. Mr Skudder then punched her to the back of her head, dragged her across the bed by her hair and punched her in the stomach. She was stopped by the associate when she tried to run away. She was then again raped by Mr Skudder and the associate.
[6] Next morning Mr Skudder threatened that he would send some of the boys (he being a member of the Mongrel Mob) to get her daughter, if she opened her mouth. The associate threatened her former husband. The threats had the desired effect. The complainant did not go to the police.
[7] Two weeks later the complainant went with the same friend to the same bar. She did so with reluctance and only when prevailed upon by her friend. Mr Skudder was at the bar. He told her he had sent some prospects around to break into her friend’s car. He made it clear her house had been under surveillance. During the evening the complainant’s friend suffered symptoms similar to those suffered by the complainant two weeks earlier. Her friend went home in a taxi. The complainant didn’t go, because according to her evidence, she was concerned about the safety of her family and in any event Mr Skudder had taken her handbag. Later she experienced the same dizziness she had experienced two weeks before. When she was told by Mr Skudder she had to go with him she ran out from the bar and was followed by him. When she accused him of raping her on the earlier occasion he responded by pulling her hair and slapping her. Later that night she was raped twice at a park, once outside and once inside Mr Skudder’s car. She was then taken to the house of a friend of Mr Skudder where she was raped a further two times by him.
[8] The next night Mr Skudder came to her home. She initially told him to go away but he came back. She let him inside when there was a threat that he would get her daughter from school. Mr Skudder made further threats against other family members. Despite those threats the complainant went to the police and made a complaint. Justice Chisholm in sentencing Mr Skudder noted a number of aggravating features of the offending. Advantage was taken of a woman who was in a condition where she was unable to resist or help herself. There were two people assisting in the attack and rapes of the complainant on the first occasion. There was violence over and above the violence inherent in the crime of sexual violation. The offending was prolonged. The offending was accompanied by threats in order to cover up the offending. The impact on the victim had been far reaching.
[9] The additional aggravating feature the Judge considered was that Mr Skudder was the instigator of the episode on the first occasion and repeated the attack two weeks later. The Judge found Mr Skudder used domination and fear to overcome the complainant’s resistance. He imposed a sentence of 16 years imprisonment.
[10] Mr Skudder has never accepted responsibility for the offending and maintains his innocence. He says the complainant consented. It is clear from the Judge’s sentencing notes that he accepted the complainant’s evidence.
[11] After Mr Skudder’s release on parole in 2011 he has accumulated a further eight convictions. They were for breach of release conditions in 2012, 2013 and
2014 when there were four. I note one of the breaches involved drug taking. There were also traffic offences (driving with excess breath alcohol, and driving while forbidden).
Purpose of an ESO
[12] The purpose of an ESO is to protect members of the community from those offenders who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences. In Mr Skudder ’s case the focus is on his propensity to commit serious sexual offending. The application is not pursued on the basis of a propensity for serious violence.
Eligibility
[13] Section 107C(1)(a) sets out a threshold requirement. Mr Skudder satisfies that requirement. At the time of the application for the ESO on 12 October 2015 he was subject to a determinate sentence, was sentenced to imprisonment for a relevant offence, and had not ceased, since his latest conviction for the relevant offence, to be subject to a sentence of imprisonment.1
[14] The matters the Court must be satisfied on before it can make an ESO are set out in s 107I. As relevant to this application it reads:
107I Sentencing court may make extended supervision order
…
(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.
[15] In Mr Skudder’s case the Court must therefore be satisfied that, having considered the matters addressed in the health assessors’ reports, Mr Skudder:
(a) has, or has had, a pervasive pattern of serious sexual offending; and
(b)there is a high risk that he will in the future commit a relevant sexual offence.
[16] The Court may only determine that there is a high risk Mr Skudder will in the future commit a relevant sexual offence if it is satisfied that he meets the criteria in
s 107IAA. In the present case, as the application is directed at the risk of Mr
Skudder committing a relevant sexual offence, the relevant provision is s 107IAA(1):
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.
[17] The considerations set out in s 107IAA(1) are mandatory and conjunctive. The Court must be satisfied as to each of those factors before it can determine there is a high risk Mr Skudder will commit a relevant sexual offence.
[18] In this context, to be satisfied requires the Court to make up its mind and on the evidence come to a judicial decision: McDonnell v Chief Executive of the Department of Corrections.2
The issues in this case
[19] Mr Skudder denies that he has or has had a pervasive pattern of serious sexual offending and also denies that there is a high risk he will in the future commit relevant sexual offence.
[20] In relation to the determination of that risk Mr Skudder denies that he:
(a) displays an intense drive, desire or urge to commit a relevant sexual offence; or that he
(b) has a predilection or proclivity for serious sexual offending.
[21] Mr Skudder also says he does not “necessarily” have limited self regulatory
capacity.
[22] It is conceded that Mr Skudder does display a lack of acceptance or responsibility or remorse for his past index offending given his denial of the convictions.
Evidence
[23] The application is supported by a report from a health assessor, Ms Joanna Browne, a registered clinical psychologist. Mr Skudder in responding to the application has obtained a report through counsel Mr Allan from Mr Lascelles, a forensic psychologist.
[24] Ms Browne assessed Mr Skudder using both static and dynamic risk factors for sexual recidivism. On the Automated Sexual Recidivism Scale (ASRS) Mr Skudder was assessed as being in the medium to high risk category. On the Violence Risk Scale: Sexual Offender version (VRS:SO) Mr Skudder was assessed as being in the high risk category. This probability is based on both static and dynamic risk indicators. The RoC*RoI score for Mr Skudder indicates a very high risk of imprisonment within five years of being released. On the PCL:SV scale Mr Skudder was assessed to have a total score above the average for New Zealand offenders and his higher score on Factor 1 (interpersonal and affective deficits) indicates a higher probability of committing serious violent offences within two years of release into the community.
[25] In summary Ms Browne considers that there is a high risk of Mr Skudder committing a further relevant sexual offence. She supports a finding he has a predilection or proclivity for serious sexual offending, has a compromised ability or
desire to manage his sexual impulses and has displayed no concern for the victim of the offending.
[26] Mr Lascelles confirmed the ASRS finding but tested it by reference to the Static-99R alternative static risk test. On that basis he initially concluded Mr Skudder was in the low to moderate risk category. Importantly however Mr Lascelles accepted the Static-99R does not measure all relevant risk factors. He conceded Mr Skudder’s recidivism risk may be higher or lower than that indicated by the Static-99R based on factors not included in the risk tool. Mr Lascelles then considered Mr Skudder’s age. Mr Lascelles like Ms Browne found Mr Skudder to be at medium to high risk under the ASRS tool and as submitted by Ms Cleary and clarified during the evidence towards the higher end of that medium or moderate to high risk.
[27] As to the specific matters under s 107IAA in his report Mr Lascelles noted that Mr Skudder’s behaviour did not necessarily demonstrate any urge or desire to sexually offend but rather could be viewed as a pattern of seeking consensual sexual gratification. He considered that Mr Skudder did not demonstrate an enduring predilection or proclivity for serious sexual offending, bearing in mind only the two confirmed incidents of such behaviour. Mr Lascelles considered that while Mr Skudder’s sexual drive and his management of that issue remained of concern its relevance to the risk of sexual offending was not necessarily clear. He accepted Mr Skudder’s ongoing sexual preoccupation would be expected to lead to instability in his intimate relationships but that did not necessarily mean that Mr Skudder would engage in coercive sexual practices. He accepted that Mr Skudder did not accept any direct responsibility for the behaviour nor show any remorse.
[28] Overall Mr Lascelles assessed Mr Skudder as being at moderate risk of sexual offending. He noted the only convictions were in relation to the index offending. In his opinion Mr Skudder was most likely to offend against an adult female known to him in circumstances where her ability to provide consent or resistance was impaired by intoxication.
[29] Both psychologists were called for cross-examination.
[30] Ms Browne confirmed that, in forming her assessment that Mr Skudder was a high risk of committing a relevant sexual offence under the VRS:SO, she had regard to two other instances where Mr Skudder was involved in allegations of rape. In addition to the index offending, Mr Skudder was charged with one count of rape of a female over 16 in relation to an incident alleged to have occurred on 13 December
1993. The allegation involved Mr Skudder and an associate picking up a female hitchhiker. They were alleged to have taken her to an address in Flaxmere, Hastings and to have raped her. Mr Skudder was discharged pursuant to s 347(3) of the Crimes Act 1961 in relation to that charge. He was also charged with rape in relation to an incident on 24 September 1993. Following a jury trial in the Napier District Court in January 1995 he was found not guilty in relation to that incident. No further details are available of those particular incidents.
[31] Section 107F(3) of the Act provides that:
(3) To avoid doubt, in addressing any matter to be referred to in the health assessor’s report, the health assessor may take into account any statement of the offender or any other person concerning any conduct of the offender, whether or not that conduct constitutes an offence and whether or not the offender has been charged with, or convicted of, an offence in respect of that conduct.
[32] Section 107F(3) was inserted by Parliament following the decision of Belcher v Chief Executive of the Department of Corrections.3
[33] Section 107H(2) confirms the Court may receive and take into account any evidence or information that it thinks fit whether or not it would otherwise be admissible in a court of law.
[34] Section 107F(3) and s 107H(2) enable the health assessor (and the Court) to take account of statements or information concerning Mr Skudder’s conduct in 1993. To that extent I accept Ms Cleary’s written submission that the circumstances of the conduct attributed to Mr Skudder in 1993 are relevant to the consideration of the application. In any event the reliance placed on those alleged incidents in 1993 by
the applicant and Ms Browne is very limited. Ms Browne clarified during cross-
3 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA).
examination that her assessment under the VSR:SO would not have altered even if the 1993 incidents were not taken account of.
[35] Mr Lascelles’ initial assessment of Mr Skudder using the Static-99R did not take account of the 1993 incidents. When they were taken into account they raised Mr Skudder’s risk categories on that test to moderate to high. Mr Lascelles considers that Mr Skudder is:
most likely to offend against an adult female who was known to him, in circumstances where her ability to provide consent or resistance was impaired by intoxication. A repetition of the index scenario may have decreased in likelihood since it occurred, with an apparent improvement in Mr Skudder’s self-regulation capacity, the experience of severe consequences for his conduct, and increasing allegiance to a prosocial identity. However, if Mr Skudder continues to experience sexual preoccupation, this could increase motivation to place himself in high risk situations for further offending.
[36] Overall and after cross-examination Mr Allan submits for Mr Skudder that Mr Lascelles’ evidence should be accepted and that the applicant has failed to satisfy the criteria in s 107IAA(1)(a) and (1)(b). Alternatively even if they could be satisfied Mr Lascelles’ opinion was that Mr Skudder was not at a high risk of serious sexual offending in the future, rather it was limited to moderate to high risk.
[37] I turn to consider the s 107IAA factors.
Intense drive
[38] It is correct and as conceded by Ms Browne that there is no direct evidence that Mr Skudder has a drive or desire or urge to commit sexual offending because he has not offended in that way since release on parole and nor is there any self reporting of such drive. But as Ms Browne noted, his self reporting is necessarily limited by his denial of the sexual offence he was convicted of. Also since his release on parole he has been subject to conditions of release and more recently an interim supervision order which led to a degree of control over his behaviour. It is also relevant that Mr Skudder has reported sexual promiscuity and casual sexual relationships in the past. There are risk factors in the current safety plan due to parallels with the types of behaviours he was engaged in at the time of the offending
for which he was convicted and the attitudes towards women that they engender. Those concerning offence parallel behaviours include the promiscuity, the sexualisation of women, displaying general cognitive distortions about women, sexual relationships with vulnerable women and his ability to manipulate them. Mr Skudder is still interested in sexual gratification.
[39] Mr Skudder has chosen to focus on vulnerable women in the current relationships he has been involved in. He has also had a number of sexual relationships with those women since release. I infer he chooses vulnerable women perceiving them to be less likely to resist him. In the event his approaches are resisted his history would suggest he will act to overcome such resistance by force of personality and/or violence if necessary. The fact that Mr Skudder continues to engage in behaviour of that kind raises concerns for Ms Browne which I accept are real.
[40] I also note that under the VRS:SO Mr Lascelles recorded the factors identified as prominent for Mr Skudder included sexual compulsivity and interpersonal aggression.
[41] I am satisfied that it can be said Mr Skudder displays an intense urge to commit relevant sexual offences.
Predilection for sexual offending
[42] Mr Lascelles was of the opinion that Mr Skudder does not demonstrate an enduring predilection or proclivity for serious sexual offending. In his opinion the evidence points at only two confirmed incidents of such behaviour across his lifetime. There is no confirmed evidence available to point to interest or involvement in sexual offending other than the two incidents in 2001.
[43] However, the index offending involved a number of incidents of offending, four incidents of rape (two as a principal, two as a party), on the first occasion and four separate rapes on the second occasion (two weeks later) over the course of the evening and night.
[44] Mr Skudder’s actions in being a principal and party to those four rapes on two separate occasions and the serious circumstances of that offending involving violence to overcome resistance, supports a conclusion that Mr Skudder has an inclination towards serious sexual offending.
[45] In addition his self reported lifestyle suggests he had ample opportunity to engage in consensual and non violent sexual activity. The fact that he chose instead to violently rape the victim on eight occasions on the two separate nights when other consensual options were available to him indicates a degree of predilection or proclivity towards serious sexual offending. Mr Allan made the point in cross- examination of Ms Browne that Mr Skudder has not sexually reoffended since he was initially released on parole in 2011. However, as noted he has been under release conditions and supervision since then. It is also obviously relevant that he has been in custody for a significant period of time, some 14 or 15 years.
[46] Ultimately Ms Browne remained of the opinion that Mr Skudder’s sexual preoccupation and compulsivity suggested an inclination to offend sexually. I agree. The evidence of Mr Skudder’s past actions and Ms Browne’s assessment satisfies me that Mr Skudder has an inclination, a proclivity towards serious sexual offending.
Self regulation
[47] While Mr Lascelles suggested that Mr Skudder does not necessarily have limited self regulatory capacity, I prefer Ms Browne’s conclusion that Mr Skudder has a history of being unable (or choosing not to) to manage his compulsivity and preoccupation with sexual relationships. As Ms Browne noted, Mr Skudder has had sexual relations with more than one woman at a time. Taken with the fact that Mr Skudder was recorded as commenting he was preoccupied with sex and needed help with his high sex drive that supports the conclusion he has a lack of self regulation. Mr Skudder’s explanation for that admission, that he was talking about the past, not the present, does seem unlikely given the detailed notes Ms Browne referred to which recorded that to be Mr Skudder’s position.
[48] I consider Mr Skudder has limited self regulatory capacity confirmed generally by his breaches and offending since release, albeit that that was not of a sexual nature. I am satisfied that he has limited self regulation.
Lack of acceptance of responsibility
[49] It is of particular concern to the Court that Mr Skudder does not accept responsibility for his past offending and accordingly feels no remorse or empathy for the complainant or the victim of that offending. There is a clear and heightened absence of understanding for the impact of his offending on the victim.
[50] There are a number of other concerning aspects about his attitude towards women that have emerged. They include the observations of Ms Browne that, during the interview, although supported by his mother he would not allow her to talk a lot and tended to cut her off abruptly. Next, and more significantly, Mr Skudder became defensive and angry when a female psychologist reporting a Parole Board outcome to him reflected that he had transgressed boundaries by asking her personal comments and commenting on her physical appearance. That is of concern, especially when combined with his expression of anger towards her regarding the report findings overall.
[51] Further, an assessing psychologist from 2015 recorded her concern regarding Mr Skudder’s disclosures of his then (in August 2015) sexual preoccupation and involvement with vulnerable women in the community. That is supported by probation case notes which record that his service manager received a call from a social worker with the local support agency (Family Start) expressing concern at his involvement with a vulnerable young mother asking that he be prohibited from visiting her address. It is also of concern that Mr Skudder did not complete the STURP course, although I note Mr Allan’s submissions that he did continue with aspects of that course on an individual basis.
[52] However the results of his STURP psychometric testing revealed personality traits including narcissism and a tendency to portray himself in a favourable or personally appealing light which remains of concern.
[53] I find the criteria in s 107IAA satisfied and I move to consider s 107I(2)(a)
and (b).
Pervasive pattern
[54] Mr Lascelles placed some weight on the fact that Mr Skudder had only offended in this sexual way on two occasions or incidents to support a conclusion that there was not a pervasive pattern of sexual offending. But although there was only one complainant, this was not a one-off isolated offence. Both occasions involved multiple incidents of rape accompanied by violence.
[55] Even without regard to the incidents from 1993, I am satisfied that Mr Skudder has had a pervasive pattern of serious sexual offending. If those earlier incidents are taken into account, the position is even stronger from the applicant’s point of view.
Summary
[56] I am satisfied that the criteria in s 107IAA(1) are met and that looking at the matter overall in the context of all the information in the reports, the evidence, cross- examination and the other material before the Court, Mr Skudder presents as a high risk of further serious sexual offending. He also has had a pervasive pattern of serious sexual offending. An ESO is appropriate in this case.
Term
[57] The term of the order must be the minimum period required for the purposes of the safety of the community in light of the level of risk posed by Mr Skudder and the seriousness of the harm that might be caused to victims and the likely duration of that risk.4 The duration is particularly significant in relation to the offending or the likelihood of serious sexual offending and Mr Skudder’s age.
[58] Mr Skudder is 47 years old. The evidence before the Court suggests that with age, offending of this kind in particular can fall away, for example, the high risk of
4 Parole Act 2002, s 107I.
sexual reoffending by static risk category between 41 to 50 year olds is 25 per cent, between ages 51 to 60 it reduces to 19 per cent. At 47 Mr Skudder is in an age cohort associated with lower risk in the aforementioned research than younger cohorts. When he moves into the older cohort he will be associated with an even lower level of risk. Also with the support and direction available through the ESO order there can reasonably be expected to be modification in his behaviour over time.
[59] In the circumstances, taking into account the nature of the offending, but also given the fact that he has responded to the interim supervision order and supervision to date, I fix the period of the ESO at eight years. The order is to come into force
today under s 107L. The conditions of the ESO are those set out in s 107JA.
Venning J
Addendum
[60] At Ms Cleary’s request I make an interim order under s 107IA imposing the
following special conditions to the Extended Supervision Order:
(a) to attend and complete any such counselling, programme or treatment to address identified offending behaviours as may be directed by and to the satisfaction of the probation officer;
(b) not to consume or possess alcohol and illicit drugs;
(c) not to communicate or associate with any gang members or gang associates, without prior written consent of the probation officer;
(d)to reside at [redacted] and not to move from that address without prior written approval from a probation officer;
(e) to comply with a daily curfew to remain at the above address between the hours of 10pm and 6am;
(f) not to enter the Hastings District other than Havelock North without the prior written approval from a probation officer;
(g)to submit to electronic monitoring as directed by the probation officer in order to monitor compliance with any condition(s) relating to whereabouts and, if issued a mobile device by the Department or is using own device, to carry and keep it charged at all times for the purpose of communicating with the probation officer;
(h)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.
[61] Those special conditions are to apply until the Parole Board makes a determination as to which, if any, special conditions are appropriate in Mr Skudder’s
case.
Venning J
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