Chief Executive of the Department of Corrections v Stephenson
[2024] NZHC 94
•7 February 2024
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2023-419-000073
[2024] NZHC 94
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
DAVID AARON STEPHENSON
Respondent
Hearing: 2 February 2024 Appearances:
A Alcock for the Applicant D Allan for the Respondent
Judgment:
7 February 2024
JUDGMENT OF TAHANA J
This judgment was delivered by me on 7 February 2024 at 1.00pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor Hamilton Legal, Hamilton Thackeray Chambers, Hamilton
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v STEPHENSON [2024] NZHC 94 [7
February 2024]
Application for ESO
[1] The Chief Executive of the Department of Corrections (the Applicant) applies for an extended supervision order (ESO) for five years pursuant to s 107F of the Parole Act 2002 (the Act) in respect of Mr David Aaron Stephenson. The Applicant says that Mr Stephenson is an eligible offender and there is a very high risk that he will commit a relevant violence offence in the future.
[2] The Applicant relies on the health assessment of Dr Adina Smith, Registered Clinical Psychologist, dated 24 March 2023 (March Report) and an addendum to that report dated 25 August 2023 (Addendum Report).
[3] Mr Stephenson opposes the application and says the Applicant has not satisfied the statutory requirements for the granting of an ESO.
Background
[4]Mr Stephenson is 36 years old.
[5] The March Report discloses that Mr Stephenson reported that his childhood was characterised by poverty and that he was exposed to abuse. He was expelled from school at 14 years of age and “kicked out” of home at 13 or 14 years old.
[6] The sentencing notes of Judge R G Marshall observe that alcohol and drugs have caused Mr Stephenson to offend “but there are deeper underlying reasons than that going right back into [Mr Stephenson’s] distant past.”1
[7] The sentencing notes of Katz J also record that Mr Stephenson reports an “abusive childhood” which has caused ongoing depression and associated issues.2
[8]This is the context within which Mr Stephenson’s offending occurred.
1 R v Stephenson DC Hamilton CRI-2014-019-000169, 20 August 2014 at [5].
2 R v Stephenson [2018] NZHC 2628 at [25].
[9] Mr Stephenson has been sentenced on 16 occasions, receiving 52 previous convictions dating back to 2005, when he was still a teenager. Mr Stephenson’s violence related offending comprises:
(a)On 9 June 2006, Mr Stephenson was sentenced for common assault and ordered to pay $300 in reparations.
(b)On 11 August 2006, Mr Stephenson was sentenced to 20 months’ imprisonment for injuring with intent.
(c)On 20 November 2007, Mr Stephenson was sentenced to one month imprisonment for common assault.
(d)On 29 November 2007, Mr Stephenson was sentenced to one year imprisonment (cumulative) for assault with intent to injure.
(e)On 7 March 2014, Mr Stephenson was sentenced to eight months’ imprisonment for assault with intent to injure.
(f)On 20 August 2014 Mr Stephenson was sentenced to: 3
(i)a term of two years and eight months’ imprisonment for one charge of wounding with intent to cause grievous bodily harm; and
(ii)a concurrent sentence of eight months’ imprisonment for one charge of assault with a weapon.
(g)On 9 October 2018, Mr Stephenson was sentenced to a term of six years and five months’ imprisonment for kidnapping and other associated violent, drug and sexual offending.4
3 R v Stephenson, above n 1.
4 R v Stephenson, above n 2. Mr Stephenson pleaded guilty to charges of kidnapping, assault with a weapon, threatening to kill (two charges), unlawful possession of a pistol, unlawful possession of a firearm, male assaults female, indecent assault, supplying methamphetamine, possession of
[10] Mr Stephenson’s most recent sentence expired on 5 September 2023, and he is subject to release conditions which are due to expire on 4 March 2024.
Statutory scheme
[11]Section 107F of the Act prescribes when the Applicant may apply for an ESO:
107F Chief executive may apply for extended supervision order
(1)The chief executive may apply to the sentencing court for an extended supervision order in respect of an eligible offender,—
(a)where the offender is subject to a sentence of imprisonment, at any time before the later of—
(i)the sentence expiry date of the sentence to which the offender is subject that has the latest sentence expiry date, regardless of whether that sentence is for a relevant offence; and
(ii)the date on which the offender ceases to be subject to any release conditions;
[12] Section 107I sets out the purpose of an ESO and the circumstances in which the Court may make an ESO:
107I Sentencing court may make extended supervision order
(1)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.
(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.
methamphetamine, possession of a class C controlled drug and two charges of possession of a utensil.
(3)To avoid doubt, a sentencing court may make an extended supervision order in relation to an offender who was, at the time the application for the order was made, an eligible offender, even if, by the time the order is made, the offender has ceased to be an eligible offender.
(4)Every extended supervision order must state the term of the order, which may not exceed 10 years.
(5)The term of the order must be the minimum period required for the purposes of the safety of the community in light of—
(a)the level of risk posed by the offender; and
(b)the seriousness of the harm that might be caused to victims; and
(c)the likely duration of the risk.
[13] In assessing the risk posed, the Court is required to consider the matters set out in s 107IAA:
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.
(2)A court may determine that there is a very high risk that an eligible offender will commit a relevant violent offence only if it is satisfied that the offender—
(a)has a severe disturbance in behavioural functioning established by evidence of each of the following characteristics:
(i)intense drive, desires, or urges to commit acts of violence; and
(ii)extreme aggressive volatility; and
(iii)persistent harbouring of vengeful intentions towards 1 or more other persons; and
(b)either—
(i)displays behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal; or
(ii)has limited self-regulatory capacity; and
(c)displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.
[14] I must therefore be satisfied that Mr Stephenson has, or has had, a pervasive pattern of serious sexual or violent offending and there is a very high risk that he will in future commit a relevant violent offence. Before considering whether those requirements are made out, I must first be satisfied that Mr Stephenson is an eligible offender.
Is Mr Stephenson an eligible offender?
[15] Mr Stephenson falls within the meaning of eligible offender in s 107C(1) of the Act. He is not subject to an indeterminate sentence and has been sentenced to imprisonment for a relevant offence.5 Mr Stephenson remains subject to release conditions until 4 March 2024.
[16]I now turn to whether the requirements of s 107IAA are satisfied.
Does Mr Stephenson have a pervasive pattern of violent offending?
[17] Mr Allan for Mr Stephenson did not dispute that Mr Stephenson has a pervasive pattern of violent offending. I am satisfied based on Mr Stephenson’s conviction history as set out at [9] of this judgment, that this requirement is satisfied.
5 Kidnapping is a relevant violent offence under s 107B(2A) of the Crimes Act 1961.
Is there a very high risk that Mr Stephenson will commit a relevant violent offence?
[18] I may only determine that there is a very high risk of violent offending if I am satisfied that each of the requirements at s 107IAA(2) of the Act are satisfied. Before considering each of those requirements, it is appropriate to set out the treatment Mr Stephenson has received since he was last sentenced in 2018. Dr Smith helpfully sets this out in her March Report and opines on the potential impact of that treatment on Mr Stephenson’s characteristics.
Rehabilitation
[19] Dr Smith notes that Mr Stephenson has engaged in both group and individualised treatment, as summarised below.
[20] Mr Stephenson completed the Special Treatment Unit for Men with Violent Offending (STU:VO) programme, which is an intensive group treatment programme designed for those who are at high risk of violent offending. Mr Stephenson was noted to have made progress and addressed some of his treatment needs. It was recommended that he work on some of his treatment needs in individual psychology and complete the Drug Treatment Programme (DTP).
[21] Mr Stephenson completed the DTP which provides intensive alcohol and drug treatment in a therapeutic community. He initially entered and then self-exited during phase one. To his credit, Mr Stephenson then re-entered the programme in October 2021 and completed it in March 2022. DTP staff perceived Mr Stephenson as making gains, but the March Report notes that Mr Stephenson does not believe he made treatment gains that would support his sobriety.
[22] Mr Stephenson completed 13 individual treatment sessions between December 2021 and July 2022 with a registered clinical psychologist. The March Report notes that modest progress was made. Mr Stephenson chose to end therapy. In commenting on these treatment sessions, Dr Smith notes that:
... while Mr Stephenson made modest treatment gains during his group and individual treatment, he has not been sufficiently supported to maintain these gains when transferred to high security or since being transferred back to low-
medium security and as a result has demonstrated some regression in behaviour.
[23] In addition to individual sessions with the Corrections’ psychologist, Mr Stephenson has also engaged of his own accord with an ACC counsellor.
[24] Dr Smith opines that there are areas for ongoing treatment while in prison and potentially in the community to reduce Mr Stephenson’s risk of violence.
[25]I now turn to each of the requirements in s 107IAA(2) of the Act.
Intense drive, desire or urge to commit acts of violence
[26] Dr Smith opines that Mr Stephenson has likely experienced an intense drive, desire and urge to commit violence and to dominate and gain power and control over others. Dr Smith opines on the impact of Mr Stephenson’s treatment on that drive, desire or urge as follows:
While he has addressed this in treatment, it is likely there is still a predictable set of circumstances under which this intense drive may be likely to be reactivated. It is likely this would happen under influence of alcohol or methamphetamine and/or in the context of interpersonal conflict, or feeling disrespected, or threatened.
[27] Mr Stephenson is to be commended for engaging in treatment. It is unfortunate that he was not better supported in prison in his treatment as noted by Dr Smith. I accept Dr Smith’s opinion that there remains an intense drive, desire or urge to commit acts of violence particularly if Mr Stephenson is under the influence of alcohol or methamphetamine. Mr Stephenson’s observation to Dr Smith was that he did not consider he made treatment gains that would support his sobriety indicates that the drive likely remains in the context of Mr Stephenson not being able to manage his sobriety. In these circumstances, I am satisfied that Mr Stephenson has a severe disturbance in behavioural functioning established by evidence of an intense drive, desire or urge to commit acts of violence.
Extreme aggressive volatility
[28] Dr Smith opines that Mr Stephenson has demonstrated aggressive volatility on occasion but that the majority of his aggressive behaviour has been largely predictable and reactive as he has indicated signs of agitation, anger, swearing, talking in a loud voice and making threats. Dr Smith opines that:
In the writer’s opinion, while Mr Stephenson has potentially evidenced aggressive volatility in certain circumstances (e.g., past violent offending where detailed information is unavailable), evidence of aggressive volatility has not been consistent across all contexts and situations.
[29]The Addendum Report further clarifies Dr Smith’s opinion as follows:
... [e]xtreme aggressive volatility was not evident during the period of assessment; however, it is noted that Mr Stephenson has been moved to a high security environment since the assessment due to poor emotional and behavioural self-management. It is also important to note that the stressors that are likely to lead to extreme aggressive volatility and physical violence are not present in Mr Stephenson’s current environment, and thus, he has not responded with extreme aggressive volatility. However, while in the community he has evidenced aggressive volatility in some situations.
[30] The opinion of Dr Smith while noting episodes of “aggressive volatility” does not refer to “extreme” aggressive volatility or to a consistent pattern of aggressive volatility to support it being “extreme.”
[31] In these circumstances, I cannot be satisfied that the evidence establishes that Mr Stephenson has “extreme” aggressive volatility as required by s 107IAA(2)(a)(ii) of the Act.
Persistent harbouring of vengeful intentions towards one or more persons
[32] Dr Smith in the Addendum Report considers Mr Stephenson’s past pattern of behaviour and considers whether there is evidence or lack of evidence of this characteristic, as follows:
In this writer’s opinion, Mr Stephenson’s past pattern of behaviour is the evidence or lack of evidence for this characteristic. In the assessment, he denied holding vengeful intentions towards any persons. However, he ruminates and holds vindictive beliefs that are easily triggered and which involve him needing to seek revenge to satisfy his desire for his personal sense of justice. For instance, according to incident case notes, Mr Stephenson
reportedly challenged a Corrections Officer, who Mr Stephenson perceived as treating him poorly, to a fight when Mr Stephenson is released to the community. However, there is no evidence that Mr Stephenson harbours persisting vengeful intentions toward this officer. Similarly, there is no evidence that Mr Stephenson persistently harbours vengeful intentions toward the victim of his index offences or anyone else. He appears to ruminate over injustices and to want those who have threatened him/caused perceived harm to face violent consequences and potentially fear him. As a result, at times he feels justified to threaten and uses violence to intimidate, and to address perceived power imbalances and injustice. (emphasis added)
[33] I understand from Dr Smith’s opinion that she has considered the evidence and does not conclude that the evidence establishes a persistent harbouring of vengeful intentions. Mr Stephenson’s ruminations and sense of injustice are not considered by Dr Smith to give rise to a persistent harbouring of vengeful intentions.
[34] Counsel for the Applicant refers to the index offending and says it occurred in circumstances where Mr Stephenson was seeking out information about witnesses of his offending which indicates he harboured vengeful intentions towards one or more persons. I accept that the summary of facts supports this submission. The issue is whether it evidences “persistent” harbouring of vengeful intentions as required by the language of the Act.
[35] I must consider all evidence including Dr Smith’s opinion which expressly finds that “there is no evidence that Mr Stephenson persistently harbours vengeful intentions toward the victim of his index offences or anyone else.” Given Dr Smith’s opinion, the Court cannot be satisfied that this requirement is met.
Clear and long-term planning of serious violent offences to meet a premeditated goal or limited self-regulatory capacity
[36] After considering whether Mr Stephenson’s offending evidenced long-term planning, Dr Smith concludes in the March Report that:
In summary, the writer believes Mr Stephenson evidenced planning and premeditation with the index relevant violent offence. However, evidence was not found for long-term planning and premeditation of prior detected violent offending.
[37] I am not therefore satisfied that the index offending discloses behavioural evidence of clear and “long-term” planning of serious violent offences to meet a premeditated goal.
[38] Turning to whether Mr Stephenson has limited self-regulatory capacity, Dr Smith opines that Mr Stephenson has a history of poor self-regulatory capacity with aggression and violence, particularly when he is angry or distressed and observes that:
Since treatment, Mr Stephenson has gained some insight into his violence pathway and at times has used skills and strategies that he has learned. He has evidenced a decrease in incidents of physical violence since being on remand. However, he has still evidenced numerous incidents of verbal aggression toward staff. Because he is in a prison with strong external controls and maintains difficulty self-regulating in this environment, it is likely he will struggle with his self-regulatory capacity in the community.
[39] Based on Dr Smith’s conclusions, I am satisfied that Mr Stephenson has limited self-regulatory capacity.
Does Mr Stephenson display an absence of understanding for or concern about the impact of his violence on actual or potential victims?
[40] The sentencing notes of Katz J indicate that the Court considered that Mr Stephenson has a degree of insight into his offending and his expression of remorse is genuine.6 The sentencing notes of Judge R G Marshall also indicate that Mr Stephenson recognised the seriousness of his offending and apologised for it.7
[41] Dr Smith opines that Mr Stephenson evidenced concern about the impact of his violent offences on some of the victims, with particular concern about the severity of the harm he inflicted. Dr Smith observes that “[h]e evidenced guilt and remorse for some of his actions. However, Mr Stephenson used cognitive distortions to detract from the serious nature of other violent offences.” In Dr Smith’s opinion, those cognitive distortions are still very ingrained and inhibit his ability to grasp the full impact of his violence on the victims.
6 R v Stephenson, above n 2 at [32].
7 R v Stephenson, above n 1 at [9].
[42] I agree with the submission of Mr Allan that Mr Stephenson’s inability to grasp the full impact of his violent offending does not meet the statutory threshold which requires an “absence” of understanding for, or concern about, the impact. Mr Stephenson has displayed an understanding, so it is not absent.
[43]In these circumstances, the evidence does not establish this requirement.
Conclusion — is there a very high risk that Mr Stephenson will commit a relevant violent offence?
[44] For the reasons set out above, Dr Smith’s health assessment does not establish the following necessary requirements of s 107IAA(2):
(a)extreme aggressive volatility;
(b)persistent harbouring of vengeful intentions towards one or more other persons; and
(c)an absence of understanding for or concern about the impact of his violence on actual or potential victims.
[45] In the absence of the above requirements, the Court cannot be satisfied that there is a very high risk that Mr Stephenson will commit a relevant violent offence.
Result
[46] In the circumstances, there is no statutory basis for the Court to grant the ESO sought.
The application is therefore declined.
Tahana J
0