Chief Executive of the Department of Corrections v Willis

[2015] NZHC 712

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2014-483-22 [2015] NZHC 712

BETWEEN

THE CHIEF EXECUTIVE OF THE

DEPARTMENT OF CORRECTIONS Applicant

AND

PETER ALFRED GEORGE WILLIS Respondent

Hearing:	14 April 2015
Counsel:	H C Mallalieu for Applicant D M Goodlet for Respondent
Judgment:	15 April 2015

JUDGMENT OF THE HON JUSTICE KÓS

[1]      Should an extended supervision order1  be made on Mr Willis’s release from prison? And if so, for how long?

[2]      Mr Willis was convicted of extensive sexual offending against two young female family members.  The children were aged between 6 and 8 and 4 and 5 years respectively  during  the  period  of  offending.    The  convictions  are  as  follows: unlawful sexual connection with a female under 12, permitting indecent act, male with girl under 12 (x2), indecent assault of female under 12 (x3), unlawful sexual connection with female under 12, unlawful sexual connection with female under 12 (x3), unlawful sexual connection with female under 12, and male rapes female under

12. The convictions related to representative charges.   Gendall J said that it was

“hard to imagine a more shocking combination of factual circumstances involving

1      Parole Act 2002, s 107F. Herein, “ESO”.

abuse and violation of children in the care of an adult male.”2     He imposed a sentence of 14 years’ imprisonment.

[3]      While serving that sentence, Mr Willis was convicted of nine further counts of indecent assault arising from of historical sexual offending against another female family member (from 1977 to 1982), and two counts of indecent assault against the

12 year old daughter of a family friend (between 2000 and 2001). Those convictions were met with sentences of two and a half years and six months respectively, to be served concurrently with the earlier sentence.

[4]      In prison, Mr Willis participated in the programme for child sex offenders at the Kia Marama Special Treatment Unit.  He was, initially, released from prison on

26 September 2012.  However he was recalled to prison because of breach of parole conditions involving the formation of a relationship with a woman with female children under 16 years of age, and entry into the grounds of a private boarding school for girls in his car while dropping off his mother.

[5]      Mr Willis’ sentence expired on 30 March 2015.  The Chief Executive of the

Department of Corrections now asks the Court to grant an ESO.

[6]      Mr Willis accepts that such an order should be made.  Initially, however, his position was the ESO should be for five years only.  However, before me Mr Willis accepted that his circumstances were such that an order for ten years should be made.    This  was  on  the  basis  that,  with  good  behaviour,  he  may  apply  for cancellation of the order after five years.

A preliminary point

[7]      The provisions of the Act governing ESOs were amended with effect from 12

September 2014.  The Parole (Extended Supervision Orders) Amendment Act 2014 amends the ESO framework.  It alters the matters the health assessor is to report on, and the Court is to consider, under s 107I.  It also extends the applicability of ESOs

to all sexual offences, and to serious violent offences.

2      R v Willis HC Wanganui T011303, 20 September 2002 at [4], per Gendall J.

[8]      The Amendment Act  does  not  contain  transitional  provisions  concerning applications made prior to it coming into force.  Transitional provisions do exist for offenders already subject to ESOs, however.3

[9]      It was common ground before me that the absence of transitional provisions, and the effect of ss 7 and 18 of the Interpretation Act 1999, meant that the new provisions do not apply to ESO applications already filed.  That is my view also.

Eligibility

[10]     Mr Willis’s convictions for sexual offending against children means he is plainly an eligible offender upon whom an ESO may be imposed.

Psychological reports

[11]     The Court has reports from Dr Stephen  Haines  and Dr John Nuth, both registered  clinical  psychologists.     Dr  Haines’  evidence  was  presented  by  the applicant department, and Dr Nuth’s by Mr Willis.  Initially time was set aside for the two experts to be cross-examined.  However, given Mr Willis’s concession that an ESO for ten years should be imposed, that course was abandoned.

Potential to reoffend

[12]     Dr Haines considers there is a high risk of Mr Willis committing further sexual offending while back in the community.   He bases that on the ASRS and STABLE 2007 techniques, along with his clinical assessment.   Dr Nuth assesses Mr Willis’ risk of reoffending as moderate to high (using STATIC-99R and ASRS) or high if measured by STATIC-99 only.   However Dr Nuth notes that the risk is a dynamic  one,  and  that  Mr  Willis  has  made  improvements  in  terms  of  sexual

recidivist risk.

3      Sections 107ZA and 107ZB.

Nature of any likely future sexual offending by the offender including age and sex of likely victims

[13]     Dr Haines considers that in the event of future offending, Mr Willis’s likely victims  will  be pre-pubescent  or  adolescent  females  to  whom  he  has  access  or control  through  family  or  a  vulnerable  romantic  partner.    I  do  not  understand Dr Nuth to disagree, while assessing the risk as lower than Dr Haines does.

Ability to control sexual impulses

[14]     Dr Haines notes with concern the circumstances resulting in Mr Willis’s prison recall to complete sentence.  In particular, his forming a relationship with a vulnerable woman with young children.   He considers that controlling sexual impulses will present on-going challenges for Mr Willis.  Dr Nuth does not consider that Mr Willis has strong self-regulatory capacities.  But nor does he consider those capacities are altogether limited either.

Offender’s predilection and proclivity to sexual offending

[15]     Dr Haines unsurprisingly concludes that Mr Willis’s repeated offending with familial and extra-familial pre-pubescent females shows proclivity towards sexual offending with them.   The Kia Marama programme may have altered that.   Post- treatment phallometric assessment lends some support to Mr Willis’s claim that he no longer holds an interest in sexual offending.  However, that remains untested in an uncontrolled environment.  At present Dr Haines considers his predilection and proclivity for sexual offending to be high.  Dr Nuth, as I have noted, considers that Mr Willis has made gains in this area, although the true extent of that cannot be stated with any degree of certainty.

Offender’s acceptance of responsibility and remorse for past offending

[16]     It appears to be common ground that Mr Willis has made some treatment gains.  He appears to accept some degree of responsibility for his sexual offending. As Dr Haines puts it, however, he is not considered to show a congruent emotional appreciation of the effects on his victims.   Concerns remain about his ability to generalise  this  beyond  a  therapeutic  environment.    Recent  lapses  (in  particular

forming the relationship with a vulnerable mother with young children) reinforce these concerns.   Dr Nuth notes that expressions of remorse by Mr Willis indicate some improvement, although it is impossible to determine how genuinely that remorse and empathy is held.

Other relevant factors

[17]     I record Dr Haines’ observation that Mr Willis has made some changes to his thinking and behaviour.   However I note also Dr Haines’ concern that Mr Willis’s expression of responsibility may mask his actual risk and thinking.  Dr Nuth takes a somewhat more charitable view.

Recommendations

[18]     Dr Haines’ recommendation is that given the above, and Mr Willis’s repeated and lengthy offending, an ESO of ten years should be imposed.  Dr Nuth’s view is more qualified.   It is that Mr Willis does present on-going risks and so some on- going safeguards are required.  A five year ESO may be appropriate.  But if a ten year ESO is issued, it could be reduced subsequently if Mr Willis demonstrated behaviour befitting such a decision.

Is an ESO appropriate in this case?

[19]     Mr Willis’ acknowledgement that an ESO should be made is sound.  The risk

of reoffending by him is real and ongoing.4

Appropriate length of the ESO

[20]     Given the recurring pattern of sexual offending against a variety of related and unrelated girls, this is a case where an ESO of ten years is appropriate.

[21]   Mr Willis deserves credit for completion of the Kia Marama treatment programme.   Some limited credit may also be given for his pleas of guilty at the second trial, although he does not appear to have initiated the investigation into that offending.

[22]     It  is  important  to  Mr  Willis  that  he  have  the  opportunity  to  apply  for cancellation of the ESO at the point where he has established a track record enabling the community again to repose trust in him.  It would surprise me if a cancellation application could be justified earlier than five years hence.  To justify cancellation of this ESO, Mr Willis will need to resist entering any compromising relationship with a mother of children under the age of 16 years.

[23]     In the meantime I impose an ESO for a period of ten years, with effect from today.5  The conditions applying are those set out in s 107JA of the Act.

Stephen Kós

Solicitors:

Crown Solicitor, Palmerston North for Applicant

D M Goodlet, Barrister and Solicitor, Wanganui for Respondent