Chief Executive of the Department of Corrections v SRA
[2018] NZHC 1088
•17 May 2018
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSES, VICTIMS, AND CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF RESPONDENT PURSUANT TO S 201 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA
AHURIRI ROHE
CRI-2016-441-36
[2018] NZHC 1088
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
SRA
Respondent
Hearing: 19 October 2017 and further submissions 27 October 2017,
1 November 2017 and 30 April 2018 (Heard at Hamilton)
Appearances:
R Guthrie for the Applicant D Allan for the Respondent
Judgment:
17 May 2018
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 17 May 2018 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mr D Allan, Barrister, Hamilton
Ms M Mitchell, Elvidge & Partners, Office of the Crown Solicitor, Napier Ms R Guthrie, Almao Douch, Office of the Crown Solicitor, Hamilton
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v SRA [2018] NZHC 1088 [17 May 2018]
[1] The chief executive of the Department of Corrections has applied for an extended supervision order against the respondent for a term of 10 years, coupled with an intensive monitoring condition for a period of 12 months.
The offences
[2]There are name suppression orders in the interests of the victims. I will refer
to the respondent as “S”.
[3] On 15 February 2013 S was sentenced to imprisonment for 4 years and 6 months by Judge G M Ross in the District Court for sexual offending against three cousins in 2011 and 2012.1
[4] The offences occurred over a 13 month period when S was aged between 14 and 15 years. The victims were a male cousin aged between 10 and 11, a female cousin aged between 8 and 9, and another female cousin aged 4. There were two offences of rape of a female under the age of 12; one offence of sexual connection with a female under the age of 12; four offences of doing an indecent act with a female under the age of 12; three offences of doing an indecent act with intent to insult; and three offences of doing an indecent act with or upon a boy under 12.
[5] A summary of the facts of the offending is conveniently taken from a health assessment report from Dr Branko Coebergh, a registered psychologist. Dr Coebergh provided two reports for this application.2 I have made some minor amendments to Dr Coebergh’s summary. I have also substituted the abbreviation “S” for the respondent’s family name, which I will do with all quotations. The summary is as follows:
The majority of S’s offences against the oldest male victim were between March and September 2011, while the victim regularly stayed with his maternal grandparents and during a period of sharing the same residence as
S. S initially enquired whether the victim knew about masturbation and, after the victim responded that he did not, S masturbated him. In time, S
1 Police v S-RA (Young Person) DC Palmerston North CRI-2012-254-34, 15 February 2013.
2 The reports are dated 1 September 2016 and 18 September 2017. The second report was an updating report for the hearing. References to Dr Coebergh’s “report”, without a date, are to the second report.
regularly woke up the victim (the exact number of times is unknown) while they shared a room and told the victim to masturbate him, which he did.
S sexually offended against the oldest female victim between June and September 2011 while she shared the same residence as S, and on two subsequent occasions when visiting his residence. He initially offended against her while watching television with her and his male victim. S kept lying on top of the victim and put his hand inside her pants, touching the outside of her vagina for a time. On a subsequent night he asked the female victim to come into his bedroom. S pushed her backwards onto the bed, lay on and kissed her before removing her top and touching her breasts. He also moved in an up and down motion on top of her. On another occasion S pulled down all his lower garments while with the female victim and directed her to do likewise, which she did. He then kissed the victim and touched all over her body. S forced his erect penis into the victim’s vaginal area in a repeated effort to penetrate her. On a further occasion, he was given responsibility to care for the two oldest victims while their parents left the residence for a short time. S masturbated himself in their view and responded to the female victim's related expression of revulsion by claiming that it was “what all boys do”. He went on to express excitement when achieving ejaculation in the situation. In April 2012, the two female victims were staying overnight in the same bedroom. S entered the room and kissed the oldest female victim’s lips before briefly leaving after the youngest female victim interrupted his offending. Upon returning he directed the oldest female victim to take off her pants and went on to kiss her, lick her vagina, and feel her bottom. The offending stopped when S heard someone on the stairs. On a final occasion he entered a bedroom where the two female victims were inside a tent made from blankets. After joining them he slipped his hand inside the oldest female’s pants, touching her bottom and the outside of her vagina.
S sexually offended against the youngest victim when her family moved into his residence and the earlier victims moved to another address. Over a five month period he repeatedly hugged and kissed the four-year-old victim on the lips in her bedroom or while seated on stairs. During this time S would also touch her bottom under her pants. He took every opportunity to pull her pants down in an attempt to sexually touch her, however at times the victim would pull her pants back up in an effort to stop his offending. On one occasion he removed the victim’s pants and his own pants and lay on top of the victim, rubbing his erect penis over her vaginal area. He failed to penetrate her vagina despite several attempts.
Parole applications, first release and recall
[6] S’s final release date was 10 November 2016. Parole applications were declined on 7 November 2013 and 8 May 2014. Following a hearing on 6 January 2015, S was granted parole from 28 January 2015 to live at his grandparents’ home. One condition of release was that S was not to associate or otherwise have contact with any person 16 years old or younger unless another adult, over the age of 20
years and who had previously been approved in writing by a probation officer, was present. S was then aged 17.
[7] Dr Coebergh noted that S, before his first release, had undertaken “30 individual offence-focused treatment sessions” with a departmental psychologist, but his age precluded attendance at a specialised group-based child sex offender treatment programme for adult offenders. In respect of assessments and treatment following the initial release, Dr Coebergh’s summary is as follows:
Following initial release from prison, S undertook seven individual assessment sessions with a Departmental psychologist between March and June 2015. They had a treatment component that was designed to assist S to build upon his earlier safety plan to better fit with his then life circumstances. S was described as co-operative and able to understand his high risk situations. It was recommended that he undertake treatment with the WellStop sex offender programme. The treating psychologist advised S’s Probation Officer that S had been ambivalent about the safety plan work. Only preliminary contact with WellStop occurred due [to] his recall to prison, but he was recorded as evidencing preceding reluctance to attend the intervention because he did not judge it necessary. S presently disputed this file record and stated that his reluctance solely related to the group-based treatment component.
[8] On 3 November 2015 the Parole Board made a final recall order. The allegations leading to the application for recall, and S’s response, are recorded in the Board’s decision as follows:
The main allegation is that in the week prior to 19 August 2015 S went to his great-aunt’s address in Taupo, with his grandparents, and while there tried to sleep in an area in the house where some girls under 16 were present. He also lied about going there and in fact told Probation that although his family had gone he had not. The occasion was a funeral.
Community Corrections have produced an email from a person who interviewed the woman whose husband had died and who lived at the house that S went to, and that explicitly says that over the course of four nights he had attempted to sleep in the lounge where she was sleeping with the girls, some of whom were under 16. However … the woman would not allow this and sent him back to sleep in the room with his grandparents.
It is notable that his index offending was against family members in a domestic setting.
It is alleged that the grandparents knew of the non-association condition but were collusive in allowing S to stay overnight and as a result Community Corrections maintains that their address is no longer suitable.
…
S himself today concedes the facts behind the allegations from the Community Corrections Department, and tells us that it was [his] decision to go to Taupo. Be that as it may, his grandparents should not have allowed him to go.
[9] S remained in custody until his final release date on 10 November 2016, when he was 19. He had been denied a further application for parole on 2 March 2016.
Interim supervision order with intensive monitoring
[10] The present application was filed in this Court on 19 October 2016. At the same time the chief executive made an application under s 107FA of the Parole Act 2002 (the Act) for an interim supervision order with a special condition that S be subject to intensive monitoring; that is, in respect of the condition, that he submit to being accompanied and monitored for up to 24 hours a day. The interim supervision order, with the special condition, was made by Simon France J on 8 November 2016.3
[11]On the question of intensive monitoring the Judge said:
[6] An intensive monitoring condition involves full time mentoring and supervision in a secure facility. It is seen as a transitional programme allowing intensive assistance to facilitate integration into the community.
[7] I am satisfied that the risks of releasing S into a lesser degree of supervision on Thursday are too great, and that an interim intensive monitoring condition should be imposed upon his release plan pending determination of the primary application. It is necessary for the safety of the public. It would also proffer the best opportunity for S to develop the skills needed to live safely in the community.
Supervision and conduct following final release
[12]
The interim supervision order and intensive monitoring was contracted by the Department of Corrections to Anglican Action Mission Trust, an agency which is based in Hamilton and has been working with offenders for over 20 years. S has been required to live at a specialised intensive monitoring facility on the grounds of the Springhill Corrections Facility, but outside the secure perimeter. Dr Coebergh recorded relevant matters following S’s final release as follows:3 Chief Executive of the Department of Corrections v S [2016] NZHC 2664.
During his current return to the community, S has complied with his conditions and typically presented well with his Probation Officer and others working with him. He has mostly proactively applied himself to self- identified goals for his sentence; including those related to physical exercise, gaining confidence in independent living, and achievement of work experience. S has also been recorded in Probation case notes as remaining reluctant to discuss his offending and offering little information when asked about his current sexual functioning. He has consistently denied sexual preoccupation but also reported distracting himself from sexual thoughts by keeping himself busy. At one point, Probation case notes recorded observation that S ‘will go to great lengths to get his own way’, when referencing how his failure to gain desired approval from one staff member saw him seek it from another.
S has received positive reports about his work ethic in a kitchen role at the Anglican Action (AA) café. At the time of writing, his IM conditions had been reduced to 12-hour monitoring (8pm-8am) for approximately two months.4 Some concern has been recorded about S seeking a female AA staff member (managing him in the kitchen) as an adult sponsor for specific jogging excursions without regard for the appropriate staff-client boundary. AA subsequently investigated a workplace allegation that he and the other party had formed an intimate relationship and concluded that there were insufficient grounds to judge the allegation valid. Both parties denied an intimate relationship. AA went on to ensure that the two were never alone in the workplace and warned her that functioning as his support person was unacceptable to the organisation. S is described as minimally associating with fellow residents at Puna Whakamutunga and mostly socialising in limited ways with others due to restrictions of his conditions and not wanting to potentially account for his conditions. He is recorded as forming a friendship, including gym exercising together, with a fellow AA worker who has sexually offended against children. This suggests S had insufficient regard for the potential risks associated with such friendships. He has reported some phone and social media contact with former peers. S’s grandparents remain his primary support people and it is concerning that they were his caregivers during the offending period and formerly colluded with him entering a high risk situation and deceiving Probation.
Until recently, staff-supported planning for potential non-IM Court outcomes was focused on S returning to Hawkes Bay. He now plans to remain in Hamilton regardless of the Court outcome. S described this decision as motivated by a desire for greater independence and initially advised Probation that he had been offered permanent employment at the AA café. Subsequent enquiry showed that this had not been the case. S presently disputed the accuracy of this file record; stating that he did not recall advising that employment had been offered and that he had instead only mentioned that there was some chance of continuing employment at the café. His Probation Officer expressed concern about this decision to remain in
4 I am satisfied this statement was based on a misunderstanding. The correct position was explained in affidavit evidence and a memorandum for the chief executive, filed at my request after the hearing. For a period of approximately 15 weeks, when S was undertaking approved work, what is called the “IM Governance Group” decided that S’s mentor did not have to be present because S was “for all intents and purposes still under constant supervision”. S unexpectedly resigned from his job when this arrangement was in place and “person-to-person intensive monitoring on a 24 hour basis” at Spring Hill village resumed.
Hamilton given his more established support network and approved address in Napier and uncertainty about potential Court outcomes precluding detailed planning for his residing in Hamilton. S subsequently advised that work is available to him locally with a business that had previously employed offenders. This opportunity was facilitated by the aforementioned female AA staff member. It should be noted that she is the mother of a young child. Despite her awareness of his sex offender status, this behaviour is considered offence-paralleling because he has formed a trusted relationship with a caregiver of a young child. S has confirmed initial awareness of and lack of concern for her parental status. His treating psychologist advised that one of the potential risk scenarios identified with him related to a trusted relationship with a child caregiver and noted that he had acknowledged in treatment that prior to his prison recall he had minimised the importance of being more mindful of protective behaviour.
The statutory framework
[13] Extended supervision orders may be made when there is high risk of sexual offending or a very high risk of violent offending. The argument in this case is that there is a high risk of sexual offending. There is no argument that there is also a very high risk of violent offending. In consequence, the summary of relevant statutory provisions that follows refers only to sexual offending and specific provisions in that regard.
[14] An extended supervision order may only be made in respect of an “eligible offender”.5 S is an eligible offender. This was not in issue.
[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 of committing serious sexual offences.6
[16] The Court may make an extended supervision order if, having considered a health assessor’s report, the Court is satisfied that two matters have been established:7
(a)The offender has, or has had, a pervasive pattern of serious sexual offending.
5 Parole Act 2002, s 107F(1). “Eligible offender” is defined in s 107C.
6 Section 107I(1).
7 Section 107I(2).
(b)There is a high risk that the offender will in future commit a relevant sexual offence.
[17] The Court may determine that there is a high risk that the offender will commit a relevant sexual offence only if it is satisfied that the offender displays, or has, what may be referred to as four “characteristics”.8 The Court must be 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] An application by the chief executive must be accompanied by a report by a health assessor.9 In cases such as the present, directed to sexual offending, every health assessor’s report must address the questions whether “the offender displays each of the traits and behavioural characteristics”, being the four characteristics just referred to, and whether “there is a high risk that the offender will in future commit a relevant sexual offence”.10
8 Section 107IAA(1).
9 Section 107F(2). The definition of “health assessor” in s 4 of the Sentencing Act 2002 applies.
10 Section 107F(2A).
[19] As noted by the Court of Appeal, once it is established that an offender is an “eligible offender”, there is a three-step process in determining the application.11 Restating the three steps by reference to the present application, they are as follows:
(a)Does S have, or has he had, a pervasive pattern of serious sexual offending?
(b)If so, does S display, or have, the four characteristics?
(c)If the four characteristics are present, a determination must be made by the Court about the risk of S committing a relevant sexual offence. An order can only be made if the Court concludes that there is a high risk that S will in the future commit a relevant sexual offence.
[20] If the Court concludes that an order should be made, the Court must then determine the length of that order, with a maximum of 10 years.
[21] As earlier noted, the chief executive has also sought a special condition for intensive monitoring. I will discuss that application after considering the primary application for the extended supervision order.
Dr Coebergh’s report
[22] Dr Coebergh, for his first report, interviewed S for a total of 2 hours 40 minutes and for his second report, a year later, for a total of 1 hour 15 minutes. In the usual way, Dr Coebergh also reviewed psychological assessment reports and notes from a range of sources, which had been made since May 2013, as well as other relevant information.
[23]After summarising the facts of S’s offending, Dr Coebergh’s preliminary
assessment, in light of the facts of the offending, was as follows:
S’s pattern of sexual offending convictions evidenced the early onset of deviant sexual interest/arousal to prepubescent or early pubescent female and male victims. All three victims were known and related to him. S’s deviant
11 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].
sexual compulsivity saw him take or create (e.g. telling a victim to come into his bedroom) regular opportunities to offend. The strength of S’s sexual compulsivity was evidenced by: the frequency of his offending and the fact that it continued until detected; the highly repetitive nature of some of his offending (representative convictions); separately offending against more than one victim of different ages and genders across extended periods; the variety of forms it took; and occasions of offending against a victim in the presence of a second victim. This last behaviour, together with statements he made to victims normalising his offending, functioned as a means of sexual grooming (efforts to lower the victims’ inhibitions against his offending). S’s offending was further facilitated by establishing sufficient trust with the victims (the JSN described how the victims enjoyed his company prior to the offending) and with his own caregivers to gain regular victim access. [This] included on more than one occasion being left in charge of victims by their parents. An escalation in the seriousness of his sexual offending occurred over its course, trending from indecent assault to rape and sexual violation. The final rape was against the most vulnerable of the victims.
Overall, S’s offending reflected callousness and a sense of entitlement to meet his sexual needs, including through rape, without regard for its harmful impact upon his victims. Although physical coercion was not the most common feature of his offending he nonetheless was, as an older boy, physically larger and stronger than the victims. S initiated and engaged in the offending despite some overt resistance (e.g. one victim expressed revulsion at his masturbating in her view and the youngest victim pulled up her pants on occasions in an effort to stop the sexual offending) and knowing it was wrong (made efforts to avoid detection). He also instructed compliance with aspects of his offending behaviour (e.g. told male victim to masturbate him, instructed a female victim to remove her undergarments). Such behaviour suggests that he exercised notable levels of power and control in the offending situations through psychological and, to some extent, physical coercion.
[24] Referring to the behaviour which led to S’s recall, Dr Coebergh made the following observations:
… The behaviour resulting in the recall is considered offence-paralleling because it involved: knowingly entering a high risk situation (his index offending was against related children in a domestic setting); exercising deception to gain potential covert victim access (lying to Probation); and deceiving caregivers by presenting himself as trustworthy and posing no or minimal risk of sexual offending. Deception was also evidenced in S’s failure to advise Probation of the occasional presence of children at his workplace and by his failure, despite being asked by Probation multiple times, to advise his employer (father of these children) of the nature of his offending until given a final opportunity to do so. During the current assessment, S expressed surprise that he had been recalled, citing the fact that no offending occurred in the situation, that he had attempted to sleep in the lounge because his grandparents were snoring, and that he had not judged the situation as risky due to the presence of adults.
[25] Dr Coebergh provided an overview of his conclusions, following his most recent assessment interviews, as follows:
During the current assessment interviews, S evidenced limited insight into factors contributing to his sexual offending. He described not being able to make sense of his offending but believing that he was no longer the person who had sexually offended. S reported negative thoughts and feelings (related to being ‘unwanted’, ‘left out’), sexual preoccupation, and being solely focused on achieving sexual gratification without regard for its impact upon the victims at the time. He stated now better knowing that the offending was wrong, despite also admitting that he knew it was wrong at the time. S presently identified the age differences between him and his victims, the familial nature of his relationships with the victims, and being someone the victims looked up to as reasons why the offending was wrong. He was able to generally describe why the Age of Consent law is in place. When asked about the likely impacts upon the victims, S made global statements condemning his offending but did not specify the likely nature of impacts, stating that he does not ‘like to think about it’. He was recorded in Probation case notes as being reluctant to discuss his past offending, in part, because he ‘does not see himself as a convicted criminal’. When asked to describe his updated treatment-promoted safety plan, without directly consulting the documented copy, S was unable to recall the majority of its content. This is concerning because, in the absence of a thoroughly internalised treatment-promoted safety plan, it is unlikely that he will reliably recall his safety plan when anticipating or unexpectedly encountering high risk situations or should early warning signs of elevated risk re-emerge.
S was able to name high risk situations more globally – any contact with underage individuals and being in situations where children might congregate (shops, supermarkets – particularly outside of school hours) – but the only personally tailored example he gave was a caregiver asking him to babysit a child. He evidenced an ability to identify basic coping strategies should he experience early warning signs of risk elevation or if he unexpectedly entered high risk situations. It was notable that S identified no specific strategies for managing the re-emergence of deceitful or manipulative at-risk behaviour and for avoiding developing trusted relationships with caregivers of children, and he did not see any family contact situations as high risk. The reasons S gave for the latter were that ‘all my family know about my offending and understand my conditions’ and his grandparents now share his consequential thinking with respect to violation of conditions. Evident in this self-report was focus on avoidance of violating his conditions rather than on self-managing sexual recidivism risk. This appeared consistent with S’s continuing denial of sexual deviancy and of posing sexual recidivism risk.
Risk assessment
[26]The next section of Dr Coebergh’s report is concerned with an assessment of
the risk of further relevant sexual offending.
[27] Dr Coebergh carried out a preliminary assessment using the Automated Sexual Recidivism Scale (ASRS) followed by an assessment using the Violence Risk Scale (Sexual Offender Version) (VRS-SO). The assessment requiring consideration is the latter.
[28] The assessment for the first report put S in the high risk category of further offending. The results of the VRS-SO assessment used for the second report were measured having regard, in particular, to the fact that S had completed “additional offence-focused treatment since the last assessment”. Progress at one level was found, but this was subject to the following concerns:
… However, because of the limited change that was evidenced his estimated post-treatment recidivism rates were higher than his corresponding pre- treatment rates.
… Of note, analysis of the VRS-SO sexual deviancy, criminality, and treatment responsivity post-treatment sub scales scores using normative data showed that S’s total scores on these sub scales was similar to those found to be in the 100th, 80.8th, and 69.9th percentiles, respectively. His total post- treatment VRS-SO score using normative data was similar to those found to be in the 88.8th percentile.
(emphasis in original)
[29] Dr Coebergh noted that the VRS-SO results for S needed to be viewed “with some caution” because the normative samples did not include offenders whose index offending occurred under the age of 18 years. Mr Allan, counsel for S, cross- examined Dr Coebergh at some length on the suitability of the VRS-SO assessment for someone, such as S, who was under the age of 18 at the time of the offending. I will address that point in due course.
[30] Dr Coebergh referred to what he considered was further offence-paralleling behaviour by S following his final release.12
[31] Dr Coebergh concluded this section of his report with his opinion that S is at high risk of engaging in relevant sexual offending if a range of identified risk factors
12 The behaviour of concern to Dr Coebergh is outlined in the paragraphs of his report reproduced above at [12].
remain present. They were risk factors which Dr Coebergh found were present up to the date of his most recent interview.
Section 107IAA: the four “characteristics”
[32] The next section of the report is directed to what I call the four characteristics identified in s 107IAA. It will be convenient to summarise Dr Coebergh’s approach, and his conclusions, in my evaluation which also considers challenges made by Mr Allan to this part of Dr Coebergh’s report.
Dr Coebergh’s conclusion
[33] Dr Coebergh’s conclusion was preceded by a further section discussing S’s management and behaviour following his initial release and following the final release. Relevant aspects of this have already been summarised or quoted.
[34]The conclusion is as follows:
S has been convicted of sexual offending against three children aged 4-11 years, all of whom are considered additionally vulnerable due to their young ages. His sexual preoccupation with and arousal to children was evidenced at an early age and was regularly acted upon over a 13-month period until it was detected. S’s nine months in the community following initial release saw offence-paralleling behaviour and related victim access and rejection of supervision. He has engaged in a large number of individual offence- focused treatment sessions to mitigate his risk, including nine sessions since his most recent release from prison, but has evidenced limited treatment gains. S presents with a high number of dynamic risk factors that reflect his level of risk and his limited response to treatment suggests that this risk will remain at a high level over the longer term. He has not demonstrated that he is able to independently manage his risk and in the absence of detection of the 2015 offence-paralleling behaviour, some of which resulted in conviction for breach of sentence and recall to prison, he may have continued on a trajectory towards sexual recidivism risk. Therefore, risk reduction is likely to be more successful when supported by external monitoring and management of S’s behaviour.
Evaluation
[35] I will consider two broad submissions by Mr Allan before assessing the elements of the statutory enquiry.
Dr Coebergh’s methodology
[36] Mr Allan submitted that there was material error by Dr Coebergh in his approach, or methodology. This was said to arise from the fact that a risk assessment was made before an assessment of the four characteristics including, in particular, the use of the VRS-SO assessment before consideration of the four characteristics. Mr Allan cross-examined Dr Coebergh on this, and put it to him, in essence, that his approach “pre-loaded” the answer to the questions contained in the statutory enquiry; the question of risk, it was argued, was addressed before the statutory elements – the four characteristics – bearing on that question had even been considered. Mr Allan referred Dr Coebergh to the three-step approach summarised by the Court of Appeal in R v Alinizi and put it to Dr Coebergh that the template Dr Coebergh used for his report, which appears to be one formulated by the Department of Corrections, is contrary to what is required by the Court of Appeal.
[37] I do not accept that the sequence in which Dr Coebergh referred to matters in his report is contrary to requirements in the Act. Nor do I accept that the sequence in which he proceeded in carrying out his investigations and assessment has affected the validity of his conclusions, either in respect of the four characteristics or on the question of overall risk. The Court of Appeal’s summary of the three-step approach does not indicate anything to the contrary. The Court there was summarising the broad steps in the decision making process of the Court, not the way in which a health assessor should go about his or her task.13
[38] I also record that I am positively satisfied from Dr Coebergh’s evidence, some of it in reasonably extensive answers, that he has used his independent clinical judgment properly to address the matters that are required to be addressed by a health assessor under the Act.
The VRS-SO assessment for offenders under the age of 18 years
[39]
As earlier noted, Dr Coebergh recorded a caution in relation to the use of the VRS-SO assessment for an offender who was under the age of 18 years at the time of the offending because the normative sample used to create the VRS-SO did not13 See [19] above.
include such offenders. In cross-examination Mr Allan challenged Dr Coebergh’s reliance on the VRS-SO because of S’s age at the time of his offending. Mr Allan supported his challenge by reference to an article published by the American Psychological Association in 2013, a copy of which Mr Allan had made available, in written submissions, before the hearing and which Dr Coebergh was familiar with.14
[40] Dr Coebergh, in his report, after expressing the caution, had nevertheless said:
… However, the tool’s use with S is considered valid because the normative sample likely included sex offenders with juvenile sexual offending convictions in their criminal history. It is also notable, that research has shown that several assessed risk factors for adolescent sexual offenders (aged 12-18 years) substantially correspond with those for adult sexual offending.
[41] In the course of the cross-examination Dr Coebergh explained in reasonable detail why he was confident that the result for S could be given weight, notwithstanding his age. His opinion was directed both to the known facts in relation to S – in particular the nature of the offending against the three victims, with increasing seriousness in the offending over time and ending with a very young victim – and to the academic literature.
[42] I am satisfied that the VRS-SO assessment was properly used and that, for the purpose of the decision I have to make, weight is to be attached to Dr Coebergh’s interpretation of the results.
A pervasive pattern of serious sexual offending?
[43] It was not in issue that S has had a pervasive pattern of serious sexual offending. This is clearly established by the offending for which he was convicted.
14 Christopher A Ralston and Douglas L Epperson “Predictive validity of adult risk assessment tools with juveniles who offended sexually” (2013) 25(3), Psychological Assessment 905.
Section 107IAA(1)(a): Does S display an intense drive, desire, or urge to commit a relevant sexual offence?
[44]I will refer to this question as directed to “characteristic (a)”. Dr Coebergh
addressed it under a heading as follows:
The offender’s demonstration of an intense drive, desire, or urge to commit a relevant sexual offence.
[45] The opinion he expressed, after reference to aspects of the offending, was as follows:
… The level of sexual deviance S has demonstrated at a young age is such that it would be expected to endure, and can be seen as underlying the persistence of desire to sexually re-offend. Although he did not sexually re- offend, S has evidenced offence-paralleling behaviour during both periods of release to the community. The potential trajectory of such behaviour had it continued undetected and unchecked, was towards sexual recidivism.
It is the writer’s opinion that the persistence of an intense drive, desire, or urge to sexually re-offend remains a sufficient concern to bring into question S’s ability to avoid such re-offending in the absence of external monitoring and management.
[46] Mr Allan submitted that the conclusion Dr Coebergh reached, having regard to the way it is expressed, is not a conclusion in conformity with the wording of the Act. Dr Coebergh was cross-examined on this part of his report, including the heading.
[47] Dr Coebergh said that the headings in his report, in respect of the four characteristics, and with the fourth separated into its two distinct components under separate headings, come from a template provided by the Department of Corrections.
[48] The precise wording for the template heading for characteristic (a) is different from the words used in the Act. The template headings for the other characteristics also deviate to an extent from the words used in the Act. Given the fact that this point has been raised in this case, I do record that it is unfortunate that the template does not use the words of the Act. I also consider that, if there is to be a template, it may be best to express the headings as questions, in the way in which I have done. Putting each matter as a question, and using the precise words of the Act, directs
attention accurately to what needs to be answered by the health assessor and, in the end, by the Court.
[49] I am nevertheless satisfied that the template headings, and the way in which Dr Coebergh has expressed himself in relation to the substance, has not resulted in a health assessor’s report which does not provide substantial help to the Court in the manner anticipated by the Act. What needs to be considered is the substance of Dr Coebergh’s opinion, including his answers in cross-examination, not the precise words used, unless they leave doubt.
[50] Reading Dr Coebergh’s opinion on characteristic (a), in the context of the report as a whole, and cross-examination, did not leave me in doubt. Dr Coebergh’s opinion was that S “displays” an intense drive, desire or urge to commit a relevant sexual offence.
[51] In the end, it is the Court that must be satisfied that each of the characteristics is displayed. If the health assessor expressed an opinion that the relevant characteristic is not displayed the Court might hesitate before reaching a contrary conclusion. However, that was not Dr Coebergh’s opinion.
[52] I am satisfied that S displays an intense drive, desire, or urge to commit a relevant sexual offence.
Section 107IAA(1)(b): Does S have a predilection or proclivity for serious sexual offending?
[53]Dr Coebergh’s concise opinion on characteristic (b) was as follows:
Proclivity is evidenced by the frequency of S’s sexual offending, multiple victims, and victims of both genders. Predilection for serious sexual offending is evidenced by the re-emergence of offence-paralleling behaviour despite the risks of its detection and the potential availability to him of legally-aged sexual partners or friends without children at the time.
It is the writer’s opinion that S evidences a predilection for serious sexual offending. This opinion is consistent with the outcome of his overall risk assessment that placed him in a high-risk category. Of particular note, S was assessed as achieving the maximum score on the CRS-SO sexual recidivism risk tool’s sexual deviancy items.
[54] Mr Allan accepted that this characteristic is present. That was a responsible acknowledgement. I am satisfied that S has both a predilection and a proclivity for serious sexual offending.
Section 107IAA(1)(c): Does S have limited self-regulatory capacity?
[55]Dr Coebergh’s opinion was as follows:
The offender’s self-regulatory capacity.
S does not appear to have a realistic appraisal of his sexual recidivism risk or the enduring nature of his sexual deviancy, and displayed limited retention of his treatment-promoted safety plan. His stated belief that his sexual deviancy has ended and that he poses no risk of related recidivism likely reduces problem recognition and related internal motivation to actively self- regulate his behaviour to keep both himself and others safe. S’s limited recall of his safety plan reduces his capacity to reliably self-regulate his behaviour across a fuller range of potential risk scenarios. These characteristics appear to have contributed to the lack of adequate attention to self-regulation which saw offence-paralleling behaviour when subject to both lower and higher levels of Probationary oversight.
In the writer’s opinion, S’s self-regulatory capacity is likely to be insufficient to mitigate his sexual recidivism risk in the absence of external monitoring and management.
[56] Mr Allan also accepted that this characteristic is present. I am satisfied that it is.
Section 107IAA(1)(d): A lack of acceptance of responsibility or remorse? An absence of understanding or concern about impact on victims?
[57]Paragraph (d) of s 107IAA(1) refers to four different “characteristics”.15
[58] The headings for Dr Coebergh’s opinion on the two parts of paragraph (d), and his opinions, are as follows:
The offender’s acceptance of responsibility and remorse for past offending.
S made general statements accepting responsibility and remorse for past offending but they appeared superficial and practiced. Such statements were not accompanied by congruent emotional expression and his ability to explain why the offending was wrong tended to lack adequate specification.
15 Paragraph (d) is fully recorded above at [17].
In the writer’s opinion, S evidences superficial acceptance of responsibility
and remorse for past offending.
The offender’s understanding of, or concern about, the impact of his or her
sexual offending on actual or potential victims.
S was able to more generally describe some of the likely impact of his offending on actual or potential victims. However, such statements were again not accompanied by congruent emotional expression and his ability to explain the likely impact tended to lack adequate specification. Efforts to prompt greater specification, on more than one occasion, saw S respond by saying that he did not like to think about it. Such avoidant thinking habits likely undermine his ability to readily experience empathy for victims or to helpfully remind himself of how such offending impacted on them. Most of S’s statements about the negative consequences of his offending were focused on those suffered by him rather than the victims.
In the writer’s opinion, S displays limited understanding of or concern about the impact of his sexual offending on actual or potential victims.
[59] Before the hearing, Mr Allan had given notice, at a pre-trial conference, of the matters in respect of which he wished to cross-examine Dr Coebergh. This did not include any challenge to these opinions. However, I granted leave for cross- examination on this part of Dr Coebergh’s opinion.
[60] The essence of the contentions put to Dr Coebergh was that his opinions fell short of opinions that there was a total lack of acceptance of responsibility or remorse, or a total absence of understanding for or concern about impact on victims; and that his opinions were that the positive characteristics were in fact present to an extent.
[61] I am satisfied that Dr Coebergh did address the relevant questions and that his opinion, as a psychologist, was that S does display a lack or absence of the characteristics referred to in paragraph (d).
[62] An essential aspect of Dr Coebergh’s responses to the questions in Court was that, as a psychological assessment, it was not possible to express a conclusion in absolute terms; he could not state that there was a total absence or total lack of the characteristic or trait in question.
[63] The Act does not require the Court to be satisfied that there is a total lack, or absence, of any aspect of the characteristic before the Court can be satisfied that the offender displays a lack or absence of the characteristic.
[64] The words in paragraph (d), as with the words in the other paragraphs, need to be read in the full statutory context. Section 107I(1) is of particular importance:
The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.
[65] What the Court must be satisfied of is a lack or absence of the relevant characteristic to an extent which bears in a material way on the ultimate question to which the characteristics are directed; that is, whether there is a high risk that the offender will commit a relevant sexual offence.
[66] Dr Coebergh’s answers reached that threshold. For example, on the question whether S displays a lack of acceptance of responsibility or remorse, it was put to him that his answer does not confirm a lack of acceptance of responsibility or remorse as required by the Act. He responded:
Mhm. So it’s tricky because the, the legal, like what the statute requires is a sort of black and white, it sounds how you're presenting it’s black and white and in terms of a psychological assessment of considering this type of thing you're really – it’s, it’s not a black or white thing. It’s really does someone have an acceptance for responsibility and a remorse, a degree of remorse. Are they able to display it to such a level that that is potentially will mitigate their risk of sexual re-offending and so how I'm thinking of it – so what I'm saying here is he's saying the right things but the accompanying presentation
– well sorry he's saying some of the right things. He’s not necessarily going into a lot of detail, he's making more global statements and the presentation when he's saying those things, so the emotions that he displays when he’s saying those things in my clinical opinion were not convincing in terms of him actually having a deeper emotional acceptance of responsibility or remorse.
And further, on the question of remorse:
… I don’t see how anyone using any methodology can absolutely say whether someone has remorse or not. All I can say is that based on his presentation with me, what he said, how he said it, that it appeared superficial as opposed to genuine.
[67] On the question whether S displays an absence of understanding for the impact on his victims, Dr Coebergh’s expanded opinion included the following:16
… So he’s able in very global terms to say that the offending was a bad thing essentially and it was, you know the victims were young and that they were vulnerable so he’s able to say that. But … he doesn't specify much more clearly the reasons why; that he doesn't show a more specific understanding of the reasons why … the ways in which the offending was likely to impact on the victims over the short and long term. … [In] terms of the lack of concern I'm more confident in talking about its absence and the reason for that is that he, you know he generally doesn't want to talk about it, about the impact on the victims and it’s difficult to see how someone who is genuinely concerned in a situation where their attitudes and thoughts about their sexual offending [were] being assessed – you know very closely in a context that is quite an important one – that he wouldn't show more openness to actually talk about difficult thoughts and feelings, if indeed he has them. And so to me that reflected more of a tendency to avoid having to talk about it and a tendency that if actually you’re carrying through your life that you're actually not wanting to remind yourself of the impact of offending upon victims and not remind yourself of why you should be concerned about it. That to me suggests a greater degree of superficiality in terms of wanting to appear to be saying the right things rather than actually demonstrating it. And again he didn’t show any congruent affect in terms of a congruent emotional response when talking about these things. And finally he was much more focussed on the impact upon himself than upon the victims. So with the victims “I don’t want to talk about that”. Where he showed he had real concern – where he was more than happy to talk – was about the impact on himself of having served a prison sentence at a young age and going forward.
[68] I found Dr Coebergh’s evidence on the questions under paragraph (d) of substantial help in deciding whether I am satisfied on the relevant question or questions under paragraph (d). Aided by that opinion, and putting it into the full factual context, I am satisfied that S does display a lack of acceptance of responsibility for his past offending, that there is no genuine remorse, and that he displays an absence of relevant understanding for or concern about the impact of his offending on his victims.
Is there a high risk S will in the future commit a relevant sexual offence?
[69] As recorded earlier in this judgment, Dr Coebergh’s opinion, for reasons he fully set out, is that there is a high risk S will in the future commit a relevant sexual offence. As also recorded, I am satisfied that there were no deficiencies in
16 I have edited the original transcript in minor ways – principally with punctuation. The changes do not affect meaning.
Dr Coebergh’s methodology, or in other respects, which diminishes the weight to be placed on his opinion. It is for the Court to determine this question, but I have again obtained substantial help from Dr Coebergh’s opinion, founded on the range of matters set out in earlier quotations or summaries of what he said.
[70] Mr Allan accepted that, if I was satisfied that the four characteristics in s 107IAA(1) are present, there would be a high risk that S will in future commit a relevant sexual offence. It may be that Mr Allan’s concession in this regard was one made on the basis of assumptions of fact arising out of the evidence in this case, rather than a proposition of law. On the law, the Court cannot determine that there is a high risk unless it is satisfied that the four characteristics are present, but the Court is not bound to determine that there is high risk when it is satisfied that the four characteristics are present. The Act makes clear that, given a conclusion that the characteristics are present, the Court “may” determine that there is a high risk.17 I have directed myself accordingly in order to reach my own conclusion.
[71] My determination is that there is a high risk that S in the future will commit a relevant sexual offence and that, in consequence, an extended supervision order is required. In coming to that conclusion, and as I have already indicated, I agree with the range of reasons advanced by Dr Coebergh leading to his ultimate opinion that the statutory risk exists. It is unnecessary to seek to summarise those opinions again.
[72] The reasons for my conclusion, however, are not limited to the specific reasons advanced by Dr Coebergh. It comes from an evaluation of a wide range of evidence of fact relating to S’s original offending, and his subsequent conduct in a range of circumstances, and in a variety of ways, which are of concern, coupled with explanations he gave in relation to conduct of concern. In relation to the evidence of conduct and things said by S, it is of significance that the allegations of fact against S on this application were not challenged in any material way.
[73] In relation to the ongoing matters of concern, both in terms of actions and reported statements, and in particular statements to Dr Coebergh, it is also of significance that, by the time of the hearing before me, S had already been subject to
17 Sections 107I(2) and 107IAA(1).
the interim extended supervision order for almost 12 months, coupled with the interim intensive supervision order. And because of the extended period of the interim order Dr Coebergh also had an opportunity to review his assessment 12 months after the first assessment in light of what had occurred, and not occurred, while S had been subject to the interim orders.
[74] There is one further consideration. On a number of matters of consequence, for the purpose of the statutory enquiry, Mr Allan placed substantial weight on S’s age at the time of his offending. Some points in that regard have already been referred to. S’s youth was also advanced as grounds for distinguishing his case from other cases where extended supervision orders have been imposed on offenders whose offences occurred when they were adults.
[75] As a general proposition, S’s youth is a factor that needs to be taken into account at this stage, as well as a factor that was taken into account by the Judge on sentencing.18 But S’s youth when he committed the offences does not of itself dictate a lenient response to an application for an extended supervision order. It might, but all relevant considerations need to be brought into account.
[76] In my opinion, weighing all relevant factors, commencing with the facts of the offending, and tracking through all subsequent events, S’s age at the date of his offending, and his age at the present time, are not factors weighing against an assessment of high risk. In my judgment, in this case, the fact that he committed this particular range of offences at such a young age, the nature of his behaviour since, and the lack of sufficiently encouraging responses to treatment, indicate that his age at the time of the offending and now lends weight to the need for an order.
The term of the order
[77]Section 107I(5) of the Act is directed to the term of an order, as follows:
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
18 Police v S-RA, above n 1, at [2], [9], [17]-[20], and [27].
(b)the seriousness of the harm that might be caused to victims; and
(c)the likely duration of the risk.
[78] The chief executive applied for an extended supervision order for the maximum period of 10 years. The application contained a bare statement that the “duration of the order sought is 10 years”. No grounds were recorded. There was no evidence contained in Dr Coebergh’s reports to assist the Court on the term of an order. Nor was any other evidence tendered by the chief executive.
[79] In cross-examination on this question, Mr Allan asked Dr Coebergh if he had given any thought to the appropriate length of the order. He said he had not. He explained that the reason was that the duration of any order and conditions such as intensive monitoring does not “come under the scope of the health assessment”. He said:
Those recommendations are made by a panel that’s based in National Office that includes representation from other agencies as well as Corrections staff and they consider the health assessment report and I believe they may be considering some other information as well in order to come to a decision about whether to make an application, for how long a duration and whether or not to seek [intensive monitoring].
[80] I express no criticism of Dr Coebergh for his approach. But I consider that this approach by the chief executive is decidedly unhelpful to the Court. In Moeke v Chief Executive of the Department of Corrections, the Court of Appeal said:19
[28] We consider, and suggest the respondent ensure in future cases where extended supervision orders are being sought, that the psychological reports provided include a considerably greater focus on the appropriate s 107I(5) minimum term. There was some suggestion in counsel's submissions that the respondent, relying on the assessment tools it employs, almost invariably seeks a ten year minimum term. Whether the maximum prescribed by Parliament should usually be the minimum; whether the statistical information is unassailable; and indeed whether the respondent has any such practice, are not matters about which we will speculate in this appeal.
[29] Nonetheless we consider that the materials placed before a court invited to make an extended supervision order should include:
19 Moeke v Chief Executive of the Department of Corrections [2010] NZCA 60.
(a)a section in the psychological report that addresses fully the minimum term sought for the particular offender against the s 107I(5) criteria;
(b)a thorough assessment of the efficacy and suitability of post-release plans including their nature and duration;
(c)relevant updating information at the date of the extended supervision order hearing; and
(d)steps which the offender has taken to address perceived risks.
[81] I received information referred to at [29](c) and (d) of that judgment. I did not receive the other information. In the further submissions, and information, provided after the hearing at my request, I did receive some further material bearing on the efficacy and suitability of post-release plans. But there was no expert opinion bearing on the appropriate term of an order. This is surprising given the observations of the Court of Appeal. It is also surprising given the clear statutory directive that the term of the order must be the minimum period required for the purposes stated in s 107I(5). And in my opinion, if the general practice is to seek the maximum term, it is a practice contrary to the statutory directive.
[82] Dr Coebergh was the only witness available to me from whom some information could be obtained. He was at a disadvantage in expressing an opinion on the term of an order not only because had he not made any assessment, but also because he was unclear about what methodology should appropriately be used to assess an appropriate term.
[83] In answer to questions from me Dr Coebergh also referred to the difficulty in providing an opinion on the term of the order because it was not known whether there would be more positive responses from S to treatment compared with responses to date.
[84]In the end we had the following exchange:
Q.Dr Coebergh, all of the questions are problematic in a sense because we do not know –
A. Yeah exactly.
Q. – what will happen?
A. Yeah.
Q. Assuming a reasonable progress, reasonable trajectory in the normal course and I know “normal” is as long as a piece of string, what would be a reasonable – and that there is ongoing treatment of an appropriate sort with monitoring and other things – what would be a reasonable length of time to review the matter? Not to end the order necessarily, but to review it?
A. Yes.
Q. Two years?
A. I guess in two years there would have been sufficient time for treatment and for looking at his behaviour in the community where he has some level of oversight in terms of external control though that would provide, that would be a reasonable period of time to reassess based purely on if, if in fact he, you know has the ideal response to treatment.
Q. Yes.
A.Yes then I guess that would be a reasonable period of time to review progress.
Q.Well that’s – your answer helps me because in your opinion with all of the contingencies that we're aware of, after two years a reasonably reliable assessment could be made as to whether there has been material progress bearing on the ultimate issues that the Court has to address. Yes?
A. Yeah.
[85] In closing submissions Mr Allan, understandably, submitted that, if there is to be an extended supervision order, it should not be for more than 2 years. He placed emphasis on an amendment of the Act in 2014 which enables the chief executive to apply for a further order.20
[86]
Ms Guthrie, for the chief executive, had some difficulty in responding to Dr Coebergh’s evidence given the way in which the application had been advanced and her instructions that an order for the maximum term was to be sought. Ms Guthrie was not in a position to take the matter beyond a submission that, in light of Dr Coebergh’s evidence, a period of 2 years would be sufficient if, over the intervening period in relation to treatment, “everything worked optimally”. That was a reasonable response. Dr Coebergh’s acceptance of my enquiry whether 2 years20 Section 107F(1)(b), as inserted by s 11(1) of the Parole (Extended Supervision Orders) Amendment Act 2014.
would be sufficient was founded on assumptions that there would be measurably positive responses from S.
[87] Against that background, allowing for the evidence of actual responses to treatment from S, and weighing other relevant information, I have concluded that the length of the order should be 2 ½ years from the date of this judgment. The result will be that, by the time this new order expires, S will in substance have been subject to an extended supervision order for approximately 4 years. I am satisfied that that is the minimum period required in terms of s 107I(5). The fact that part of this total period arose from an interim extended supervision order does not make any difference to the substance of what has been involved to date with the interim order.
Intensive monitoring order
[88] When an extended supervision order is sought, an application may also be made to the court for an order requiring the Parole Board to impose an intensive monitoring condition.21
[89] Section 107IAC makes provision for the court order. Relevant subsections are the following:
(2)An intensive monitoring condition is a condition requiring an offender to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the chief executive, to undertake person-to-person monitoring.
(3)The order must specify the maximum duration of the intensive monitoring condition, which must be no longer than 12 months.
(4)If the court makes an order under this section, the Board must impose an intensive monitoring condition on the offender as a special condition.
(5)The court may not make an order under this section in respect of an offender more than once, even if the offender is subject to repeated extended supervision orders.
[90] Beyond those provisions, there is no statutory guidance as to when an intensive monitoring order should be made. In addition, as with the term of the
21 Parole Act 2002, s 107IAB.
extended supervision order, Dr Coebergh’s instructions did not include instructions to consider whether this is a case where, in addition to the interim order with the intensive monitoring condition, there should be a further order for such a condition and, if so, the term of the intensive monitoring condition.
[91] I have concluded that this application should be declined, for the following reasons.
[92] S has already been subject to an intensive monitoring condition for 12 months. The maximum duration of such a condition, made on a final application for an extended supervision order, is 12 months, as recorded in s 107IAC(3) above. The provisions of the Act relating to interim supervision orders, which can include what might be called an “interim intensive monitoring condition”, and the separate provisions dealing with orders for intensive monitoring conditions as part of a final extended supervision order, can be construed as enabling successive intensive monitoring orders for periods of 12 months each, notwithstanding the prohibition contained in s 107IAC(5). In particular, s 107FA(4), read in conjunction with s 107K(3)(ba), suggest that successive orders for intensive monitoring conditions, interim and then final, may have been contemplated by the legislature.
[93]Section 107FA(4) is as follows:
If, under an interim supervision order, the court imposes an intensive monitoring condition or residential restrictions, the period for which the interim supervision order is in force is not to be taken into account for the purpose of the limits specified in section 107K(3)(b) and (ba).
[94] Section 107K makes provision for the Parole Board to impose special conditions. Section 107K(3)(ba) provides that:
When the Board imposes special conditions under this section,—
…
(ba) any intensive monitoring condition may apply only within the first
12 months of the term of the order …
[95] The two provisions, read together, do not contain an express provision for an “interim” intensive monitoring condition to be followed by a “final” intensive monitoring condition, but the possibility of such an occurrence seems to be implied.
[96] Although the relevant statutory provisions may be construed as enabling successive orders for intensive monitoring conditions to be imposed, I am not in this case persuaded that the vagaries of factual circumstances that have occurred, including a procedural history over which S will not have had any control, should result in intensive monitoring orders being imposed for successive periods of 12 months. It is reasonable to assume that, in enacting these provisions, and in particular provision for interim orders, Parliament anticipated that the hearing of the substantive application would occur reasonably promptly after interim orders were made. In this case, the hearing of the substantive application occurred on 19 October 2017 almost 12 months after the interim orders were made, and further written submissions were required to be filed following that hearing.
[97] My conclusion that an intensive monitoring order is not required is reinforced by consideration of the powers of the Board, without a court order to impose an intensive monitoring condition, to impose conditions which can provide a high level of external supervision over all aspects of an offender’s life.
[98] Section 15(3) of the Act provides that conditions that may be imposed as special conditions include, without limitation, the following:
(a)conditions relating to the offender's place of residence (which may include a condition that the offender reside at a particular place), or his or her finances or earnings:
(ab) residential restrictions:
(b)conditions requiring the offender to participate in a programme (as defined in section 16) to reduce the risk of further offending by the offender through the rehabilitation and reintegration of the offender:
(ba) conditions prohibiting the offender from doing 1 or more of the following:
(i)using (as defined in section 4(1)) a controlled drug:
(ii)using a psychoactive substance:
(iii)consuming alcohol:
(c)conditions that the offender not associate with any person, persons, or class of persons:
(d)conditions requiring the offender to take prescription medication.
(e)conditions prohibiting the offender from entering or remaining in specified places or areas, at specified times, or at all times:
(f)conditions requiring the offender to submit to the electronic monitoring of compliance with any release conditions or conditions of an extended supervision order, imposed under paragraph (ab) or (e), that relate to the whereabouts of the offender:
…
[99] Section 15A contains further detailed provisions relating to electronic monitoring, and s 33 similarly detailed provisions relating to residential restrictions.
[100] For those reasons I decline to make a further order for the Board to impose an intensive monitoring condition.
Variation of interim special conditions
[101] By memorandum dated 30 April 2018 the chief executive submitted that, if there is no further order for an intensive monitoring condition, alternative interim special conditions should be imposed pursuant to s 107IA because it may be three months before the Parole Board can meet to consider the final conditions to be imposed as part of the extended supervision order made by this judgment.
[102] I accept that it is appropriate to impose interim special conditions. These are recorded under the result heading below.
Result
[103] There is an order that the respondent, S, be subject to an extended supervision order for a period of 2 years and 6 months from the date of this judgment.
[104] The application for an order pursuant to s 107IAC of the Parole Act 2002 that the Parole Board impose an intensive monitoring condition is dismissed.
[105] Under s 107IA of the Parole Act 2002 the following special conditions, expressed as proposed in the memorandum for the chief executive, are imposed on an interim basis in accordance with the provisions of that section:
(a)To undertake and engage in a reintegration programme with a service provider, as approved by the probation officer, to the satisfaction of the programme provider and probation officer.
(b)Not to possess or consume alcohol or illicit drugs.
(c)To attend and complete an appropriate drug and alcohol programme to the satisfaction of your probation officer and programme provider. Details of the appropriate programme to be determined by your probation officer.
(d)To reside at an address as directed by your probation officer, to abide by any residence agreement that is in place, and not to move from that address without the prior written approval of a probation officer.
(e)Not to be away from your approved address between the hours of 10:00 pm and 6:00 am each day without the prior written approval of a probation officer.
(f)You are not to undertake any employment, training or voluntary work without the prior written approval of your probation officer. You must disclose the nature of your offending to your employer, which must then be verified by your probation officer for approval to occur.
(g)Not to communicate or associate with the victims of your offending, unless you have the prior written consent of your probation officer.
(h)Not to enter or remain in schools, parks, recreational centres or other places identified in writing by your probation officer where children congregate unless under the supervision of an approved adult and with the prior written permission of the supervising probation officer.
(i)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)To submit to electronic monitoring in the form of global positioning system (GPS) technology as directed by a probation officer in order to monitor your compliance with any condition(s) relating to your whereabouts and, when issued a mobile cellphone device by the Department, to carry and keep it charged and turned on at all times and to answer it for the purpose of communications with the probation officer.
Woodhouse J
0
2
1