Chief Executive of the Department of Corrections v White

[2024] NZHC 3870

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-134

[2023] NZHC 3870

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

v

CHRISTOPHER JAMES WHITE

Hearing:

31 October 2023

Appearances:

A L Mills for the Applicant

M Starling for the Respondent

Reasons Judgment:

21 December 2023

JUDGMENT OF PRESTON J

This judgment was delivered by me on 21 December 2023 at pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v WHITE [2023] NZHC 3870

[21 December 2023]

[1]        The Chief Executive of the Department of Corrections (the Chief Executive) applies for an extended supervision order (ESO) for a period of five years in respect of Mr Christopher White.1

[2]        At the hearing on 31 October 2023, Mr White advised through his counsel, Mr Starling, he consented to the ESO. Notwithstanding his consent, the application requires that the Court is satisfied that the statutory requirements for the making of an ESO are met, and that it is appropriate for Mr White to be made subject to such order.

[3]        Prior to the hearing, I read the materials in support of the application by the Chief  Executive,  including  the  health  assessor’s  report.  The  health  assessor, Ms Averill, gave evidence at the hearing. Following this and, after hearing from counsel, I granted the order with reasons to follow.2

[4]These are my reasons.

Relevant background

[5]        Mr White is now 30 years old. He has 10 previous convictions, nine of which are for sexual connection with a young person aged 12 to 16 years.

[6]        Mr White committed his first sexual offences involving a minor when he was aged 16 through to 17 years of age.   On six occasions over a 17-month period,     Mr White had sexual connection with the victim, who was the younger brother of his girlfriend at the time, aged between 11 and 13 years.3 Mr White groomed the victim and his family in order to facilitate access to the boy. The offences involved both oral and anal sex. While Mr White was still serving a period of intensive supervision imposed in relation to that offending, he offended on two further occasions against a 13-year-old male friend, who he befriended through grooming online. That offending did not come to light until many years later.

1      Parole Act 2002, s 107F.

2      The Chief Executive of the Department of Corrections v White [2023] NZHC 3862 [31 October 2023].

3      Mr White was 18 years old when he appeared as a first offender on 11 July 2011 and was convicted and sentenced, on six charges of sexual connection with a young person, to 18 months’ intensive supervision and six months’ community detention imposed.

[7]        Mr White undertook various rehabilitative treatment opportunities. These included a community programme in 2011, the conditions of which he breached by contacting a young person. He engaged in 20 individual counselling sessions with a psychologist during 2012 and 2013. During the term of imprisonment imposed in June 2017 in respect of the second set of offences, Mr White completed what was then known as the Kia Marama Special Treatment Unit Rehabilitation Programme and, on completion, engaged with a Kia Marama graduates group.

[8]        In June 2021, aged 28, Mr White was convicted of a further charge of sexual connection with a young person, again a young male he had befriended, who was   15 years old. He met the victim by arrangement at Mr White’s house, where they used cannabis and drank alcohol that Mr White had supplied. Several hours later, Mr White performed oral sex on the victim who had no recollection, having passed out while Mr White was performing that act.

[9]        The District Court transferred Mr White for sentence to this Court to enable consideration of a sentence of preventive detention. On balance, the sentencing Judge decided a finite sentence, to be served in full as a consequence of his previous first strike warning, was appropriate. The Court noted the “tipping point” in favour of the finite term was the availability and likelihood of an ESO.4

[10]      Mr White was sentenced to two years and seven months’ imprisonment. The sentence expiry date, 9 January 2024, is also his statutory release date. He will be subject to release conditions which end on 8 July 2024.

The ESO application

[11]      The application for an ESO is filed pursuant to s 107F of the Parole Act 2002 (the Act):

4      R v White [2022] NZHC 607 at [76].

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—

(ii)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

(iii)the date on which the offender ceases to be subject to any release conditions; or

(b)where the offender is subject to an extended supervision order, at any time before the expiry of the order; or

(2)An application under this section must be accompanied by a report by a health assessor (as defined in section 4 of the Sentencing Act 2002).

(2A)Every health assessor’s report must address one or both of the following questions:

(a)whether—

(i)the offender displays each of the traits and behavioural    characteristics    specified     in  section 107IAA(1); and

(ii)there is a high risk that the offender will in future commit a relevant sexual offence:

(b)whether—

(i)the offender displays each of the behavioural characteristics specified in section 107IAA(2); and

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

…

Eligibility

[12]      It is not disputed that Mr White is an eligible offender pursuant to s 107C(1)(a) of the Act. He was sentenced to a determinate sentence of imprisonment for the charge of sexual connection with a young person and remains subject to that sentence of

imprisonment. Sexual connection with a young person5 is a “relevant offence” under s 107B.

[13]      Upon release on his sentence expiry date, he will be subject to release conditions which expire on 8 July 2024.

The test – extended supervision order

[14]      Part 1A of the Act empowers a court to make an ESO in respect of an offender who has been sentenced to imprisonment for a relevant sexual offence and has not ceased to be subject to release conditions.6 The power as initially enacted in 2004 was only available in respect of offenders who had committed specified serious sexual offences against children or young persons where the court was satisfied the offender posed a real and ongoing risk of similar offending.7

[15]      A court may make an ESO only if, following the hearing, it is satisfied of the matters set out in s 107I, which relevantly provides:

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

5      Crimes Act 1961, s 134(1).

6      Parole Act, s 107C(1).

7      Pursuant to the Parole (Extended Supervision) Amendment Act 2004. The range of the regime was extended in 2014 to include specific sexual offences against a victim of any age and specified serious violent offences.

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

…

(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. (emphasis added)

[16]      In Mr White’s case, before making the order sought I must be satisfied, after having considered the matters addressed in the health assessor’s report and evidence, that:

(a)he has, or has had, a pervasive pattern of serious sexual offending; and

(b)there is a high risk that he will in future commit a relevant sexual offence.

[17]      To determine the application, I follow the three-step process set out by the Court of Appeal in Chief Executive of the Department of Corrections v Alinizi:8

(i)the Court must determine whether the offender has, or has had, a pervasive pattern of serious sexual or violent offending;

(ii)the Court must make specific findings as to whether the offender meets the qualifying criteria set out in section 107IAA; and

8      Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468 at [13].

(iii)if those criteria are met the Court must make a determination about the risk of the offender committing a relevant sexual or violent offence. The decision-making exercise is fact specific and evaluative, having regard to the requirement to impose such an order consistently with the New Zealand Bill of Rights Act 1990.9

[18]      The decision-making exercise is fact specific and evaluative, having regard to the requirement to impose such an order consistently with the New Zealand Bill of Rights Act 1990.10 Careful scrutiny is required in making an order and the Court has emphasised that there needs to be “strong justification” for an ESO if statutory criteria are met.11

Pervasive pattern of serious sexual offending

[19]      A pervasive pattern of serious sexual offending is one that is sufficiently characteristic of an offender to serve as a predictor of future conduct.12 A pattern does not have to be regular; it may take any form or sequence.13 A pattern that includes relevant but less serious conduct may be found pervasive. Serious offending after a relatively lengthy period of no offending, during the course of which an offender has received extensive treatment, has been held to reinforce the pervasiveness of a pattern of offending.14

9      Chief Executive of the Department of Corrections v Coleman [2021] NZCA 528 at [17].

10    Chief Executive of the Department of Corrections v Coleman [2021] NZCA 528 at [17].

11 R(CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53]; Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289 at [20], [34]; Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507 at [31]; Bannan v Chief Executive of the Department of Corrections [2023] NZCA 227 at [13], [42]. Consequent upon Chisnall v Attorney-General [2021] NZCA 616, [2022] NZLR 484, (2021) HRNZ 49 at [138], where the extended supervision regime was declared to be inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990, the Court has affirmed the requirement of “strong justification” for an order. The Court did not accept that a recalibrated approach should be taken to the making of an extended supervision order, or that in exercising its discretion to make an order the court should determine whether the restrictions imposed go no further than is reasonably necessary to protect the public: R (CA586/2021), at [53]; Wilson, at [17] and Mosen, at [27].

12 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171 at [23]; Bannan v Chief Executive of the Department of Corrections [2023] NZCA 227 at [25].

13 Kiddell, above n 12 at [23]; and Bannan, above n 11, at [24].

14 Bannan, above n 11, at [25].

[20]      What should be considered serious sexual offending will involve an evaluation of the quality and degree of the offender’s conduct viewed against the statutory purpose of protecting the community from those who pose a real and ongoing risk of such offending.15

[21]      The early offending was committed during Mr White’s later teens. It involved repetitive offending over a four-year period against two significantly younger victims. Mr White groomed his victims and sometimes their families, by use of online messaging, imagery and/or exchange of sexualised content. The offending included degrees of planning. Mr White acknowledges he isolated and pressured his victims into the sexual conduct, including by portraying sexual acts as a game. He reported targeting victims he perceived to be more vulnerable. He did not view the arousal and adrenaline which accompanied his secretive sexual conduct as harmful or abusive, reportedly adopting distorted thinking which normalised and minimised the harm of sexual behaviour with children due to his own early experiences of sexual abuse.

[22]      Mr White disclosed that the majority of his sexually harmful behaviour has been committed without legal detection. He has engaged in such behaviour with nine victims, mostly pubescent males known to him. He continues to demonstrate a preference for younger males. While, prior to the index offending, Mr White disclaims any sexual contact offending since April 2012, he acknowledged to the report writer that he had continued to engage in sexualised online interactions with underaged males between 2012 and 2015 as it was easier to avoid detection and conviction.

[23]      The index offending is reportedly the product of an enduring sexual preoccupation. As the sentencing Judge noted in respect of his index offending, despite Mr White’s apparent active engagement in treatment opportunities and rehabilitation, the 2021 offending bore “all the hallmarks” of his prior offending.

15     Kiddell, above n 12, at [21] and [22]; Holland v Chief Executive of the Department of Corrections

[2017] NZSC 161, [2018] 1 NZLR 771 at [13].

[24]      I am satisfied there exists a pervasive pattern of serious sexual offending that is an accurate marker of Mr White’s likely future behaviour. He has a continued tendency to pursue primarily pubescent males and has reverted to an imbalanced lifestyle following completion of specialised treatment, parole conditions and external monitoring. Notably his proclivity has remained despite apparent opportunities for Mr White to engage in sexual relationships with age-appropriate partners.

Is Mr White at high risk of committing a relevant sexual offence?

[25]      A Court may only determine there is a high risk of Mr White committing a relevant sexual offence if satisfied he meets the criteria in s107IAA, which relevantly provides:

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.

…

[26]      Each of the factors in s 107IAA must be established before an order may be made.

[27]      In assessing these statutory criteria, I have the benefit of Ms Averill’s psychological assessment of Mr White. Ms Averill interviewed Mr White and reviewed his probation, prison, and psychological records. With his permission, she spoke to his current departmental psychologist and case manager and reviewed

treatment information at Kia Marama, and previous departmental psychological treatment records, including the psychological assessment report to the High Court in relation to the possibility of the sentence of preventive detention for his index offending.

Does Mr White display an intense drive, desire, or urge to commit a relevant sexual offence?

[28]      An offender “displays” the relevant traits and behaviours without externally manifesting them, especially where that assessment is based on self-report, if the Court is nonetheless satisfied on the evidence that the traits or behaviours are present.16 The traits may be latent and, as the Court of Appeal recognised in Taakimoeka, this may be so even though accompanied by apparent progress in treatment.17

[29]      The clinical psychologist records that from a young age, Mr White has had a high level of sexual preoccupation. He has engaged in sexually harmful behaviour across his lifespan. She notes that, over time, his sexual preoccupation appears to have been largely maintained, despite the frequency of offending behaviour seemingly reducing. The sexual preoccupation, coupled with increased psychosocial stressors, saw Mr White return to high risk behaviours, in the context of which the index offending occurred.

[30]      Having regard to Mr White’s self-report, Ms Averill observes there is limited evidence that he currently displays an intense drive, desire, or urge to commit a relevant sexual offence. However, with respect to his lifetime functioning, she opines that he possesses a strong sexual preoccupation and sexual deviance that, in certain conditions, triggers such an intense drive, desire or urge.

Does Mr White have a predilection or proclivity for serious sexual offending?

[31]      In Ms Averill’s opinion, in the context of his lifetime functioning, Mr White has a clear predilection towards underaged males and proclivity towards serious sexual offending. Mr White has a prolonged history of seeking out vulnerable victims to

16     Alinizi, above n 8, at [26] and [28].

17     Taakimoeaka v Chief Executive of the Department of Corrections [2021] NZCA 467 at [32].

engage in sexually harmful behaviour. His offending, both dealt with by the courts and that which went undetected, has included deliberate and persistent engagement in sexualised online interactions with males, with the express purpose to avoid detection and conviction. As he has grown older, that sexual interest in underaged pubescent children has persisted. While disclaiming any contact offending over a period of several years before the index offending, it is noted he ultimately returned to engagement in offence-analogous behaviour and offended again against an underage boy following previous sanction and treatment.

Does Mr White have limited self-regulatory capacity?

[32]      Due to long-term difficulty regulating his emotions, Mr White is noted to have typically relied on maladaptive strategies, including withdrawal from others, self- harm, alcohol abuse and impersonal sex. Against that background of emotional instability and sexual preoccupation, he acknowledges a protracted history of seeking impersonal sexual encounters. This has occurred particularly during times of emotional dysregulation. Discrete periods of stability have typically been in the context of external accountability and support. That is, when Mr White has been subject to sentence, treatment programmes, counselling, and/or release conditions and monitoring. He is yet to independently demonstrate protective self-regulation skills over time and in different circumstances.

[33]      Ms Averill opines that Mr White’s general and sexual self-regulation capacity is “low, particularly in the context of reduced external support and stress”.

Does Mr White display an acceptance of responsibility and remorse for past offending?

[34]      In respect of the enquiries under s 107IAA(1)(d), the Court of Appeal has observed:18

18     McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218 at [23].

Offenders who present a high risk of committing a relevant sexual offence will not have the protective characteristics described in s 107IAA(1)(d). This is consistent with the statutory wording which speaks of “a lack of” and “an absence of” these protective characteristics. However, the absence (or lack) of these characteristics are indicia of high risk offenders only because these protective characteristics mitigate this risk. The focus must therefore be on whether the acceptance of responsibility, remorse, understanding or concern are material in the given case in the sense that they are present to a sufficient degree to mitigate the relevant risk. Parliament cannot have intended that any degree of presence of these protective characteristics (no matter how limited and whether or not in any way operative to mitigate the risk), would preclude a person from being assessed as being at high risk. Such an interpretation would plainly be inconsistent with the statutory purpose of public protection.

[35]      While Mr White has expressed responsibility for his previous sexual offending, committed during his childhood and teens, the assessor expressed reservation as to the degree of responsibility he accepts for his index offending.

[36]      In particular, he maintains views that his index offending was distinctly different from his earlier behaviour and externalises blame in relation to his knowledge of the victim’s age.

Does Mr White show understanding or concern about the impact of his offending?

[37]      Ms Averill notes an incongruence between Mr White’s articulated remorse and his characterisation of the features of his index offending. The self-focus on sexual gratification is a key factor in much of his offending history. During treatment at Kia Marama, he demonstrated aspects of understanding, including verbalising likely victim impacts and recognising distorted thinking patterns which had previously minimised the impacts of his past offending. He has articulated likely impacts on his index victim and others. The psychologist considers this should be interpreted with caution, however, as it has not translated to sustained behavioural change previously. She notes he has a tendency to adapt his presentation to impress positively.

[38]      In Ms Averill’s opinion, Mr White’s limited insight into key aspects of his offence process and externalisation of blame is incongruent with an ability to fully understand or have concern for the victims of his offending.

Other material information

[39]      The health assessor also  used actuarial instruments to evaluate the risk of   Mr White committing further sexual offending if left unsupervised in the community. This included a multi-method assessment using the ASRS-R, a static risk tool that estimates sexual recidivism and which is normed on a recent New Zealand population of men with a current sexual offence. Mr White was scored at an above-average risk of further sexual offending.19

[40]      Using the STATIC-99R, a widely accepted predictive measure of sexual recidivism, Mr White scored in the highest category, “IVb (Well Above Average)”. This places him in the 97th percentile of the normative sample.

[41]      The Violence Risk Scale: sexual offence version (VRS:SO) was also used.  Mr White was assessed overall as being in the level IVb (Well Above Average) risk category. Within this measure, Mr White had a score in the 94th percentile for the Sexual Deviancy subscale, the 72nd percentile for the Criminality subscale, and 89th percentile for the Treatment Responsivity subscale total dynamic score. It was noted these findings further highlight that Mr White’s sexual deviancy remains a primary risk management target and that he endorses factors that may impact his responsivity to treatment.

[42]      The Psychopathy Checklist: Screening Version (PCL:SV) had been previously administered for the psychological assessment for this Court at the 2021 sentencing. It remains relevant in Ms Averill’s view. The PCL:SV indicates the probability of a risk of serious reoffending. It is based on New Zealand research into recidivism. Relevantly, the presence for Mr White of psychopathy traits (PSCL:SV 75.8th percentile) and sexual deviancy (VRS:SO 93.8th percentile) indicates he has a “well- above average” risk of sexual recidivism.

19     The health assessor manually scored this assessment tool to ensure accurate assessment of relevant risk factors, including the gender of victims of Mr White’s offending, males.

Updated information following completion of (second) Kia Marama programme

[43]      At the hearing Ms Averill updated the Court, based on a completed treatment report of Mr White’s recent Kia Marama programme. Whereas she noted an improved understanding of his offending, Mr White had made “mixed” progress on being able to use offending-protective skills.

[44]      Based on the new information, Ms Averill’s conclusions expressed in her report were unchanged. Nor is there any change to her assessment of the endurability of the risk he presents.

[45]      While there had been  no  overt  sexualised  behaviour  within  the  prison,  Mr White was noted to have made a comment about his sexual interest in an underaged male on television. This is analogous behaviour with his previous sexually harmful behaviour. The assessor noted that, in the absence of intoxication, Mr White has a high level of self-regulatory capacity.  However,  when,  due  to  lifestyle  factors, Mr White becomes emotionally dysregulated and when he is without or is not using support, he presents with the sexual urge and/or compulsivity which underlies his offending.

Summary: risk assessment

[46]      In terms of the endurability of the risk Mr White presents, it is noted that his established pattern of sexual deviancy and preoccupation began in childhood and has persisted throughout his lifespan, into adulthood. Although he denied intent, his reoffending followed a well-patterned offence cycle of developing a relationship with the victim over a period of time and a focus on sexual gratification. This cycle has persisted, despite previous treatment. It is unlikely to remit without significant effort across high risk situations.

Summary

[47]      Mr White is now 31. His near-lifetime pattern of sexual offending commenced at age six.

[48]      Mr White’s offending history is both entrenched and enduring. He acknowledges it has involved more offending than detected. Relevantly, it has persisted into mature adulthood and notwithstanding intensive community-based and, subsequently, custodial offence-related treatment and post-release supervision and support. His most recent offence was marked by similar offending triggers. As the sentencing Judge noted, it bore “all the hallmarks” of his prior offending. Mr White has not demonstrated an ability to self-regulate or manage his tendency to sexual deviancy outside of highly managed and monitored environments.

[49]      Mr White’s improved understanding and motivation to avoid recidivism is based on self-report. He has an ability and inclination to present positively, and I note impression management has been a feature of some of his prior offending.

[50]      Due to the delay in discovery of his second set of criminal offending (committed in 2012 but prosecuted in 2017), Mr White completed the Kia Marama special treatment programme as an adult in his mid-20s. Notwithstanding his successful completion of that programme, within months of his release, and in the absence of external monitoring, Mr White resumed his maladaptive strategies in the face of life stressors.

[51]      Mr White appears not to understand or fully acknowledge the index offending, which he committed as a 28-year-old man nearly twice his victim’s age, as he continues to deflect blame in respect of it.

[52]      The evidence of Ms Averill establishes that Mr White still presents a significantly high risk of further similar sexual offending. Indeed, Mr White is in the highest category of risk in several of the applied measures and lacks a personal support network.

Conclusion

[53]      Having regard to the information set out in Ms Averill’s report and her further evidence at the hearing, I am satisfied Mr White has, or has had, a pervasive pattern of serious sexual offending, and there is a high risk he will in future commit a relevant sexual offence.

[54]      Mr White has a near life-long history of sexual pre-occupation and sexually harmful behaviour, from a young age. His offending has involved grooming and planning to enable sexual engagement with vulnerable young persons. An initial preference for pre-pubescent boys has continued, as he has aged, towards primarily pubescent males. Offending has persisted notwithstanding multiple intensive treatment programmes and support, and Mr White is susceptible to re-offending when he reverts to an imbalanced lifestyle and emotional dysregulation, and is not subject to external monitoring.

[55]      For the reasons identified, I am satisfied it is appropriate to make an extended supervision order.

The length of the order

[56]      The Chief Executive, on the basis of the clinical psychologist’s report, seeks a five-year term.

[57]      The order must be for the minimum period required for the safety of the community given the risk posed by Mr White, the seriousness of the harm that might be caused to his victims, and the likely duration of the risk. On the basis of the information before me, I am satisfied that term should be five years and that an ESO of that duration is, accordingly, a justified limitation of Mr White’s rights and freedoms under s 26(2) of the New Zealand Bill of Rights Act 1990.

Orders

[58]      The extended supervision order I made on 31 October 2023 for the term of five years will come into force on Mr White’s statutory release date of 9 January 2024.20

………………………………………

Preston J

Solicitors:

Crown Solicitor’s Office, Christchurch for the Applicant M Starling Barrister, Christchurch for the Respondent

20 An interim supervision order was also granted on 31 October 2023 without further comment from counsel however I note the terms of s 107FA suggest an interim order was not required, following determination of the ESO application on 31 October 2023.