Chief Executive of the Department of Corrections v Wilson
[2021] NZHC 3325
•7 December 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000138
[2021] NZHC 3325
BETWEEN CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
ApplicantAND
CALEB WILSON
Respondent
Hearing: On the papers Appearances:
P A Currie for Applicant M Starling for Respondent
Judgment:
7 December 2021
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 7 December 2021 at 11 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
[1] On 14 February 2020, Caleb Wilson was sentenced to two years eight months’ imprisonment on nine charges under s 131A of the Films, Videos and Publications Classification Act 1993 and one charge under s 124A of the Crimes Act 1961. Shortly before his expected release date, the Chief Executive of the Department of Corrections filed an application for an extended supervision order (ESO) for a period of 10 years,
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v WILSON [2021] NZHC 3325
[7 December 2021]
and for intensive monitoring (IM) for a period of 12 months, to be imposed on Mr Wilson. The application was made on the grounds that Mr Wilson 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.
[2] Because it was unlikely that the substantive hearing on those applications would take place before his release date, the Chief Executive also sought an interim supervision order (ISO) to take effect on Mr Wilson’s release until the substantive applications could be heard.
[3] On 30 November 2021, I was advised the application for an ISO was not opposed and no hearing was required. On the same day, I granted the application for an ISO, including that Mr Wilson reside at the Salisbury Street Foundation and be subject to intensive monitoring.
[4] While the making of the ISO was not opposed, I must be satisfied that the statutory criteria for making such an order is satisfied.1 This decision sets out in brief why I am satisfied that the statutory criteria for making an ISO with IM are met in this case.
The legal framework
Eligible offender
[5] An application for an ESO (and therefore an ISO) can only be made in respect of an eligible offender within the meaning of s 107C of the Parole Act 2002 (the Act). I am satisfied that Mr Wilson is an eligible offender because:
(a)Mr Wilson was sentenced in the Christchurch District Court to a term of imprisonment for relevant offences being possession of objectionable publications with knowledge (x9) (s 131A Films, Video and Publications Classification Act 1993).
1 Turnbull v Chief Executive of the Department of Corrections [2020] NZCA 409 at [11].
(b)That sentence has not been quashed or otherwise set aside and he has not ceased since his last conviction for a relevant offence to be subject to a sentence of imprisonment.
(c)Mr Wilson is not subject to an indeterminate sentence.
(d)On the date of the application Mr Wilson was in custody.
[6] Under s 107FA of the Act, if, before an application for an ESO is finally determined, the offender who is the subject of the application is released from prison, this Court can make an ISO and impose an IM condition.
[7] In Chief Executive of the Department of Corrections v Ihimaera, Muir J said that an application for an ISO required the Court “to be satisfied, albeit on a provisional basis … that the statutory criteria for an ESO are made out”,2 saying:3
Although applications for ISOs occur within the context of legislation having as its central focus the safety of the community, the Court has always looked to the criteria for the granting of an ESO in guiding its assessment. Even in cases where the evidence establishes a potential risk to the public there could be no basis for granting an ISO if the Court was not satisfied (albeit in a provisional way and subject to later reconsideration on receipt of all relevant evidence), that such statutory criteria were made out.
Criteria for ESO
[8]Section 107I sets out the criteria for an ESO as follows:
(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:
2 At [16].
3 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [14].
(ii)there is a very high risk that the offender will in future commit a relevant violent offence.
[9] Section 107IAA(1) in turn sets out the matters of which the Court must be satisfied in assessing whether there is a high risk that the offender will, in future, commit a relevant sexual offence.
(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.
Mr Wilson’s history of offending
[10] Mr Wilson is only 22 years old. However, as noted in the health assessor’s report prepared by Ms Amanda Richards, a registered clinical psychologist, Mr Wilson has a considerable history of sexually offending. By the age of 10 years he was already accessing pornography on the internet and engaging in sexualised behaviour. However, he first came to the attention of youth justice authorities at the age of 13 when he received convictions for indecent dealings with a child under 13 years. Between 2013 and 2016 Mr Wilson accrued a further 13 convictions for sexual offending. These included convictions on charges of indecent dealings with a child under 13, possessing child sexual exploitation material and produced child exploitation material. In relation to the conviction for indecent dealings with a child under 13, Mr Wilson reported he began abusing the victim, a four year old boy, from when he was approximately 12 years old.
[11] In 2016, at the age of 16 years, Mr Wilson was placed in state care with oversight from the sexual offender management squad. In February 2017, when he had just turned 18, Mr Wilson was deported to New Zealand. In February 2020, he was convicted on charges of possession of objectionable publications and indecent communication with a young person. The material found in his possession was extensive and included videos depicting penetrative sexual activity between children and adults, bestiality and sadism.
Discussion of the statutory criteria
[12] In light of his history and the evidence which is provided in the health assessor’s report I go on to consider whether the criteria in s 107I are met, at least on a provisional basis.
Is there a pervasive pattern of serious sexual offending?
[13] In Holland v Chief Executive of the Department of Corrections, the Court of Appeal discussed the phrase “serious sexual offending” in the context of imposing an ESO under the Act, saying:4
Self-evidently, only offending at the higher end of the range would justify such a step. Parliament could not be taken to have contemplated that a pattern of offending at the lower end of the spectrum would justify consideration of such a potentially draconian constraint. It is, however, an assessment for the judge on the facts of the particular case.
[14] Similarly, in Wardle v Chief Executive of the Department of Corrections, the Court of Appeal observed that “serious sexual offending”:5
… would necessarily include circumstances that are properly regarded as aggravating both in relation to the actual offending and in relation to the offender. Such circumstances might tend to show conduct that might otherwise be regarded as at the lower end of the spectrum in a more serious light.
[15] In my view, while much of Mr Wilson’s offending is not contact offending, it is nevertheless serious sexual offending having regard both to actual offending and the offender. Although young, Mr Wilson has been convicted of contact offending, and
4 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [45].
5 Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298 at [42].
his interview with the health assessor reveals his offending may well be much more extensive than his conviction record shows. The aggravating features of the objectionable publications which he was found in possession of include the sheer volume of that material and the fact that much of it came within the most serious category of objectionable material. As the sentencing judge recognised, such offending is not victimless in that each image involves the exploitation of a child.6
[16] Furthermore, as I go on to discuss under the issue of risk, it appears that Mr Wilson has limited, if any, self-regulatory capacity and without close supervision would inevitably lapse back into sexual offending behaviour. In these circumstances, I am satisfied, at least on a provisional basis, that there is a pervasive pattern of serious sexual offending.
Is there a high risk that the offender will in future commit a relevant sexual offence?
[17] The criteria in s 107(1AA)(1) which are required to be satisfied before determining there is a high risk that the offender will commit a relevant sexual offence were comprehensively addressed in the report prepared by Ms Richards. In addressing those criteria Ms Richards concludes:
(a)Mr Wilson presents with an intense desire and urge to commit a relevant sexual offence, which would be acute were he to have easy access to potential victims;
(b)Mr Wilson has a clear preference and proclivity for serious sexual offending, noting he has continued to collect, create and indulge in deviant material, despite various sanctions and interventions and he has demonstrated a preference for pre-pubescent children and incestual sexual contact for much of his adolescent and young adult life.
(c)Mr Wilson has limited self-regulatory capacity. He presented “as an individual with an obsessional focus on sex that he reported he was unable to control”. While, living in the therapeutic community at Kia
6 Police v Wilson [2020] NZDC 6471 at [14] citing Webb v R [2016] NZHC 2966 at [54].
Marama, was able to better regulate his behaviour for short periods of time. However, his “high level of sexual preoccupation and deviant sexual interest remained an unaddressed treatment need. … his lack of desire for change, focus on immediate gratification, level of dishonesty, and [Autism Spectrum Disorder] traits were factors that contributed to his limited progress”.
(d)Mr Wilson shows little acceptance of responsibility and remorse for past offending. Ms Richards notes that in the past there has been an absence of remorse and says “little appears to have changed in this regard”. She concludes that “Mr Wilson’s apathy towards change in general, his tendency towards seeing himself as ineffective, and his lack of remorse all impact on his ability to take on the responsibility required to effect change”.
(e)Mr Wilson has demonstrated “limited capacity to understand or demonstrate concern for the impact of his behaviour on his victims”.
[18] Ms Richards also used actuarial instruments to measure Mr Wilson’s static and dynamic sexual reoffending risk. Using the STATIC-99R, which is an internationally recognised measure of the static factors associated with the risk of sexual recidivism, Mr Wilson’s score placed him in the 99th percentile, well up in the highest risk category.
[19] On the Violence Risk Scale – Sexual Offence Version (VRS:SO) which assesses both static and dynamic risk factors, Mr Wilson was again assessed as being in the highest risk category level. Analysis of the VRS:SO three dynamic subscale scores found the following:
Mr Wilson had a score similar to those found in the 98th percentile for the sexual deviance subscale; the 97th percentile for the criminality subscale and the 93rd percentile for the treatment responsivity subscale.
[20] She says the results were consistent with clinical observation and indicated that Mr Wilson’s offending was driven by both his sexual deviance and his disregard for the rights of others with limited evidence that this is amenable to change.
[21] The Psychopathy Checklist: Screening Version (PCL-SV) was also administered during the assessment and Mr Wilson’s score was above average for New Zealand offenders. High scores on the PCL-SV are predictive of higher rates of reoffending and, when combined with sexual deviance, are associated with an increased risk of sexual reoffending. Furthermore, the personality traits and behaviours associated with a high score are likely to act as a barrier to the individual’s ability to change.
Conclusion
[22] In my view, this evidence, at least on an interim basis, satisfies me that there is a high risk that Mr Wilson would commit a relevant sexual offence in the future and an ISO is warranted.
Conditions
[23] I am also satisfied that the conditions proposed, which include IM for 12 months, are appropriate. This is because of the evidence that Mr Wilson has enduring deficits in his self-regulatory capacity and has developed a reliance on sexually deviant gratification to overcome and cope with adversity in his life. As Ms Richards concludes:
[h]is risk of committing further contact offences would be acute if he were unsupervised and in the company of children or vulnerable others.
Ms Richards also says that Mr Wilson “will require a high level of monitoring and support in order for his risk to be managed in the community”.
[24] The conditions proposed are intended to address that risk and provide a framework which will ensure his risk of committing relevant sexual offences is minimised for the protection of the community. Those special conditions are:
1. To be subject to Intensive Monitoring and 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.
2. To submit to electronic monitoring as directed by a Probation Officer in order to monitor your compliance with any conditions relating to your whereabouts.
3. Not to approach, enter or remain on the premises of any school, early childhood education centre, park, library, swimming pool, other recreational facility, church, or other area specified in writing by a Probation Officer, unless you have the prior written approval of a Probation Officer, or unless an adult approved by a Probation Officer in writing, is present.
4. Upon release from prison, to travel directly to your approved address and await the arrival of a Probation Officer and a representative from the monitoring company.
5. To submit to electronic monitoring as directed by a Probation Officer and comply with the requirements of partial residential restrictions. To remain at your approved address between the hours of 10.00 pm and 6.00 am daily, unless you have the prior written approval of a Probation Officer, or as permitted by section 33(4) of the Parole Act 2002.
6. To comply with the requirements of electronic monitoring and provide unimpeded access to your approved residence by a Probation Officer and/or representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by a Probation Officer.
7. Not to possess or use any electronic device capable of accessing the internet or capturing, storing, accessing or distributing images (including without limitation any personal computers, notebook tablets or cellphones) without the prior written approval from a Probation Officer.
8. Upon request, to make available to a Probation Officer, or his or her agent, any electronic device capable of accessing the internet or capturing, storing, accessing, or distributing images that is used by you, or is in your possession or control, for the purpose of monitoring your use of the device.
9. To reside at Salisbury Street Foundation, and not move from that, or any other approved address unless you have the prior written approval of a Probation Officer.
10. To comply with any tenancy agreement or rules issued by the provider of your approved accommodation.
11. Not to have contact or otherwise associate, with a person under the age of 16 years, directly or indirectly, unless you have the prior written approval of a Probation Officer, or unless you are under the supervision and in the presence of an adult approved in writing by a Probation Officer.
12. To attend a psychological assessment and attend, participate in, and complete any recommended treatment as directed by a Probation Officer.
13. To disclose to a Probation Officer, at the earliest opportunity, details of any intimate relationship which commences, resumes, or terminates.
14. To obtain the written approval of a Probation Officer before starting or changing your position and/or place of employment (including voluntary and unpaid work). To notify a Probation Officer if you leave your position of employment.
15. To attend a reintegration meeting as directed by a Probation Officer.
16. Not to have contact or otherwise associate, with any victim of your offending (including previous offending) directly or indirectly, unless you have the prior written approval of a Probation Officer.
[25] Accordingly, on 30 November 2021, I granted the Chief Executive’s application for an ISO in respect of Mr Wilson on the conditions set out in [24] above.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To:
M Starling, Barrister, Christchurch
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