Chief Executive of the Department of Corrections v Wilson
[2016] NZHC 1081
•18 May 2016
INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF APPLICANT IN TERMS OF PARA [88].
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-002878 [2016] NZHC 1081
BETWEEN CHIEF EXECUTIVE OF THE
DEPARTMENT OF CORRECTIONS Applicant
AND
MR W Respondent
Hearing: 16, 17 and 18 May 2016 Appearances:
D J Dufty and S Wilson for Applicant
J W Clearwater and J Nouri for RespondentJudgment:
18 May 2016
Reasons:
23 May 2016
REASONS FOR JUDGMENT OF VENNING J
This judgment was delivered by me on 23 May 2016 at 4.45 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
Clearwater & Associates, Auckland
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MR W [2016] NZHC 1081 [18 May
2016]
Introduction
[1] The Chief Executive of the Department of Corrections, applies for a Public Protection Order (PPO) against Mr W. The application is under the Public Safety (Public Protection Orders) Act 2014 (the Act).
[2] The application was filed on 2 December 2015. It followed comments of the Parole Board at Mr W’s hearing on 10 November 2015. In the course of that decision the Parole Board noted that Mr W’s sentence release date was 9 December
2015 and recorded that it was of the view a Public Protection Order (PPO) or an Extended Supervision Order (ESO) or both were definitely called for. The Board urged the Department to make such applications without delay.
[3] The application was called on 7 December 2015. An interim detention order was made until the application for the PPO was finally determined.1
[4] At the conclusion of the hearing I declined the application for the PPO. These are the reasons for that decision.
Background to Mr W’s offending
[5] Mr W is 40 years old. His offending began when he was 15 years of age. His first appearance in the District Court was on 24 September 1992 when he was sentenced for a number of offences committed on 8 December 1991, namely unlawfully takes a motor vehicle, unlawfully interfering with a motor vehicle, theft, wilful damage, possession of a knife in a public place, and escaping from police custody. On the same date he was sentenced in relation to charges of burglary, attempted unlawful taking of a motor vehicle and wilful damage, which related to incidents on 30 July 1992 and 10 September 1992. He received a sentence of corrective training for all this offending.
[6] On 25 August 1993 Mr W was sentenced to three years, nine months’
imprisonment for an aggravated robbery involving a firearm on 27 May 1993.
1 Public Safety (Public Protection Orders) Act 2014 s 107; Chief Executive of Department of
Corrections v W HC Auckland CIV-2015-404-2878, 7 December 2015 (minute of Brewer J).
[7] In 1996 Mr W was convicted of being unlawfully on property, obscene language, and driving with excess breath alcohol. He was fined in relation to unlawfully being on a property, and was disqualified from driving and sentenced to no-resident periodic detention in relation to driving with excess breath alcohol. On
26 February 1997 Mr W was charged with driving whilst disqualified and failing to stop for a police officer.
[8] While on bail for the driving offences and at the age of 21 Mr W and an accomplice committed several violent offences on 28 March 1997. The offences were robbery by assault, aggravated robbery (x2), injuring with intent to injure, breaking and entering, burglary, aggravated injury, aggravating wounding, and injuring with intent cause grievous bodily harm.
[9] The offending spree had begun when Mr W visited a burger bar. Without provocation he attacked a 15 year old youth, punching him in the nose and kicking him in the face. He then broke into a hotel. When discovered by the manager to be drinking from stolen bottles of spirits he struck the manager in the face with a full bottle. After leaving the hotel he and his accomplice violently robbed another person walking on the street. The publican’s wife came out to see what was happening. Mr W attacked her, punching and kicking her. He kicked her in the face and genitalia, injuring her vagina so much that she required surgery. A short time later he and his associates became involved in what the High Court Judge who sentenced him in August 1997 described as a “totally mindless attack on a group of young people sitting in a car, which eventually included stabbing of an innocent man”. The victims were robbed at knife point. One of them was stabbed in the chest by Mr W. Shortly after that incident Mr W committed a burglary at a sports store.
[10] Mr W received an effective sentence of seven and a half years’ imprisonment
for that spate of offending.
[11] On 27 June 2001 Mr W was released on parole. On 8 July 2001, less than two weeks after release, Mr W raped and indecently assaulted a 13 year old girl. Two days later when he found out the father of the victim was looking for him, he made a pre-emptive attack on the father and seriously assaulted him using a rake as a
weapon. Mr W was sentenced to preventive detention for the sexual violation and
three years’ imprisonment for the other offences.
[12] On 26 August 2002 the sentence of preventive detention was quashed on
appeal and replaced with a finite sentence of 14 years’ imprisonment.
[13] While in prison Mr W has been convicted of four further counts of assault: two counts of common assault, which occurred on 5 September 2005; one of assaulting a prison officer on 25 July 2010; and one of assault with intent to injure on 11 November 2014. In addition to these convictions, Mr W has also been the subject of internal disciplinary proceedings arising from other incidents he has been involved in while in prison.
The related application for an ESO
[14] In addition to the application for the PPO the applicant has applied in the alternative for an ESO. The application for the PPO is brought by originating application in the civil jurisdiction of the Court.2 By contrast the application for an ESO is made under the Parole Act 2002 and is made to the sentencing Court in its criminal jurisdiction.
[15] The provisions in the Parole Act relating to ESOs were amended at the same time that the Act was enacted in December 2014. Section 107GAA of the Parole Act provides that where there is both an application for an ESO and a PPO the Court must not hear the application for the ESO until:
(a) the proceeding on the PPO application has been completed and the
Court has declined to make a PPO against the offender; or
(b) the PPO application has been withdrawn; or
(c) the PPO made has been cancelled as a result of a successful appeal against the order.3
2 Public Safety (Public Protection Orders) Act 2014, s 104.
3 Parole Act 2002, s 107GAA.
Background to the Act and its objective and principles
[16] The background to the Act was discussed in Parliamentary debates. At the third reading of the Bill, (which had Labour Party support) Hon Sam Lotu-liga, then Minister of Corrections noted:
The purpose of this bill is to keep the community safe from near-certain harm by a small number of offenders.
…
The Public Safety (Public Protection Orders) Bill complements existing measures such as preventive detention and extended supervision orders, and these current sentencing or supervision options deal adequately with the majority of high-risk offenders. However Public Protection Orders are able to address gaps and deal more appropriately with certain very high risk offenders. These gaps include very high-risk offenders who did not receive a life sentence or preventive detention, or whose risk was appreciated only once they were imprisoned. …
[17] The objective of the Act is set out in s 4:
4 Objective of Act
(1) The objective of this Act is to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences.
(2) It is not an objective of this Act to punish persons against whom orders are made under this Act.
[18] The principles of the Act are provided for in s 5:
5 Principles
Every person or court exercising a power under this Act must have regard to the following principles:
(a) orders under this Act are not imposed to punish persons and the previous commission of an offence is only 1 of several factors that are relevant to assessing whether there is a very high risk of imminent serious sexual or violent offending by a person:
(b) a public protection order should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order:
(c) a public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:
(d) persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.
Application of the Act
[19] The threshold requirements are set out in s 7 of the Act. The relevant one for present purposes is s 7(1)(a):
7 Threshold for imposition of public protection order
(1) A person aged 18 years or older meets the threshold for the imposition of a public protection order if—
(a) the person—
(i) is detained in a prison under a determinate sentence for a serious sexual or violent offence; and
(ii) must be released from detention not later than 6 months after the date on which the chief executive applies for a public protection order against the person; or
…
(2) For the purposes of this Act, a person meets the threshold for a public protection order if the person meets the threshold at the time that the chief executive applies for that order against the person.
[20] Mr W satisfies the threshold requirement in s 7(1)(a). He is now 40 years old, and was at the time of the application, detained in prison under a determinate sentence for a serious sexual offence. He was due to be released from detention not later than six months after the date on which the application was made. In terms of s 7(2) Mr W met the threshold for a PPO at the time the application was made for the order.
[21] The application must be accompanied by at least two reports that have been separately prepared by health assessors (at least one of whom must be a registered psychologist), which address the criteria in s 13(2) of the Act and address whether there is a very high risk of imminent serious sexual or violent offending by the
respondent.4
[22] The Court may on its own initiative direct a health assessor or the respondent may request a health assessor to assess him or her.5 Mr W has obtained reports from two health assessors.
[23] The criteria for an order are set out in s 13 of the Act:
13 Court may make public protection order
(1) After considering all of the evidence offered in a proceeding on an application for a public protection order, and, in particular, the evidence given by 2 or more health assessors, including at least 1 registered psychologist, the court may make a public protection order against the respondent if the court is satisfied, on the balance of probabilities, that—
(a) the respondent meets the threshold for a public protection order; and
(b) there is a very high risk of imminent serious sexual or violent offending by the respondent if,—
(i) where the respondent is detained in a prison, the respondent is released from prison into the community; or
(ii) in any other case, the respondent is left unsupervised.
(2) The court may not make a finding of the kind described in subsection (1)(b) unless satisfied that the respondent exhibits a severe disturbance in behavioural functioning established by evidence to a high level of each of the following characteristics:
(a) an intense drive or urge to commit a particular form of offending:
(b) limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties:
(c) absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims (within the general sense of that term and not merely as defined in section 3):
(d) poor interpersonal relationships or social isolation or both.
[24] As Mr W meets the threshold the ultimate issue for the Court in this case is whether it is satisfied on the balance of probabilities that there is a very high risk of
imminent serious violent offending by Mr W if he is released into the community: s 13(1)(b)(i). The applicant does not suggest that Mr W poses a very high risk of imminent serious sexual offending.6
[25] The Court may not make such a finding unless satisfied Mr W exhibits a severe disturbance in behavioural function as required by s 13(2). The requirements of s 13(2)(a) to (d) are conjunctive. The Court may not make a finding under s 13(1) unless each of the criteria in s 13(2)(a) to (d) are established by evidence to a high level.
[26] The first consideration for the Court must therefore be whether the above characteristics have been established by evidence to a high level.
[27] Although the wording of s 13(2) is somewhat awkward, I interpret it to mean that the Court must be satisfied on the evidence before it that Mr W exhibits, in other words has, as part of his personality, each of the four characteristics described; and also in each case, that he has them to a high level. The alternative interpretation of the section is that it requires a high level of evidence of each characteristic (without reference to the strength of the characteristic). But even on that interpretation the level of evidence would, in reality, need to be such that each characteristic was established to a high level in any case.
[28] An immediate issue is what the use of the word “exhibits” in this context requires. On one view of it, it could be said that “exhibits” connotes a requirement that Mr W be presently displaying the particular characteristic(s) at the time of the assessment or hearing. However, I do not consider that is what is required. At any particular time not all aspects of a person’s character will be on display. They may be latent but still present. In my judgment the issue is whether, as part of his personality, Mr W has the identified behavioural characteristics to a high level, even if they may only manifest themselves in certain circumstances. It is not whether he
is presently displaying them. If he has them to a high level, that will inform the
6 In allowing the appeal against the imposition of the sentence of preventive detention the Court of Appeal in R v W CA135/02, 26 August 2002, (2002) 19 CRNZ 555, at [24] concluded that: “The sexual offences are not indicative, by their type or circumstances, of a dangerous propensity warranting a settlement of preventive detention”.
assessment of whether he is a very high risk of imminently committing a serious violent offence.
[29] I observe that all the experts addressed the issue under s 13(1) before addressing the considerations under s 13(2). While that follows the structure of the section, logically the Court must be satisfied as to the criteria under s 13(2) before it may make a finding under s 13(1). The approach should be for the reports to consider the presence or otherwise of the characteristics and, having determined that, to then go on to consider whether there is a very high risk of imminent serious violent offending. Such an approach would also be consistent with the structure of s 9(b).
The evidence on this application
[30] Against that background I consider the evidence in this case. The evidence for the applicant was given by Dr Skipworth, a psychiatrist and clinical director, Auckland Regional Forensic Psychiatry Services; Mr Britton, senior psychologist; and the evidence for Mr W by Dr Goodwin, a consultant liaison and forensic psychiatrist, and Dr Blackwell, clinical psychologist.
[31] The experts, together with a Mr Louw, a registered psychologist whose evidence was directed at the application for the ESO, met in advance of the hearing. The experts agreed on the following:
(a) Mr W’s mental health concerns are not sufficient to meet the criteria
for the Mental Health (Compulsory Assessment and Treatment) Act
1992.
(b)Intellectual disability is not a relevant factor in assessing Mr W’s risk, and he is not eligible to be a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
(c) Mr W scores in the “high risk” band of the Automated Sexual Recidivism Scale (ASRS) risk assessment instrument.7 However, the experts note that the scoring of the appeal Court finding contributes to the ASRS high risk score. If he had not appealed the finding he would score in the medium/high risk band (assuming all other variables remained constant).
(d) Mr W’s risk of sexual offending is not at the very high end of the
“high risk” band for sexual offending.
(e) Mr W’s risk of sexual offending is lower than his risk of violent offending.
(f) Mr W does not have an intensive drive or urge to commit sexual offences.
(g) Mr W does not have a deviant sexual interest in children. (h) Mr W’s risk of violent offending is at least high.
(i) Mr W’s RoC*RoI8 is in the high risk category but not in the very high
risk category. Seventy-two per cent of individuals released from prison with his score will be re-imprisoned within three years, and 75 per cent within five years.
(j)Regarding the Violence Risk Scale (VRS)9 Mr W scores in the top risk band. All experts agree “high risk” is an appropriate categorisation. The experts disagreed on whether his violence risk is
very high (i.e. at the top end of the top band).
7 Actuarial risk measure: predicts an offender’s risk of re-imprisonment for sexual offending.
8 Risk of reconviction/risk of re-imprisonment model: actuarial risk measure which predicts an
offender’s risk of re-imprisonment.
9 Risk assessment tool developed specifically for violent offenders.
(k)Regarding the PCL-SV10 scores the experts agree that Mr W is at the international cut-off for the category associated with higher risk and above the cut-off for the New Zealand normed prison population.
[32] The issue of the frequency with which those behavioural characteristics leading to the likelihood of offending manifest themselves is covered by the requirement in s 13(1) for there to be a very high risk of imminent serious violent offending if Mr W is released in the community.
[33] I accept Mr Dufty’s submission that the word “intense”, as used to modify the drive or urge referred to under s 13(2)(a), is about the strength of the drive or urge, not its frequency. In other words, it is about the strength of the feeling rather than the timing of it. That is consistent with the definition of intense as “of extreme force,
degree of strength”.11
[34] In relation to an application for an ESO under the provisions of the Parole Act in Chief Executive, Department of Corrections v Wrigley Heath J made the following comments in relation to the issue of intense drive:12
[40] Past behaviour is the best predictor of future behaviour. The nature, extent and duration of the [sexual] offending that occurred in the period between 1997 and 2002 evidences a pattern of behaviour that is indicative of an urge or desire to offend in that way regularly.
[35] In Chief Executive of the Department of Corrections v Rimene (again an application for an ESO), when considering the issue of intense drive Muir J referred to a reported incident from 2008, noting the fact that:13
[Mr Rimene] was apparently prepared to engage in the reported conduct despite the existence of an ESO and specific prohibitions on child contact satisfies me that, at least in 2008, there remained an intensity of drive, desire or urge to commit offending against young girls sufficient to satisfy the criteria in s 107IAA(1)(a).
10 Psychopathy Checklist – Screening Version: structured assessment instrument that provides an estimate of risk of serious re-offending.
11 Oxford Online Dictionary “intense” <oxforddictionaries.com>.
12 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712.
13 Chief Executive of the Department of Corrections v Rimene [2015] NZHC 2721.
In both cases the Court accepted that evidence of a past or historical drive or urge was sufficient to satisfy the test under the Parole Act. For present purposes that aspect of the test is the same.
[36] The question in terms of s 13(2) is whether the respondent has each of the required behavioural characteristics (which are obviously indicators of risk of serious offending) to a high level or not as part of his personality or character, even if they may be latent. Consideration of what may trigger the urge is relevant to the test under s 13(1).
Does Mr W have an intense drive or urge to commit violent offences?
[37] The experts differed in their views as to whether Mr W exhibited the s 13(2)
characteristics to a high level.
[38] Dr Skipworth’s focus was on the current situation rather than Mr W’s past behaviour. He focused on Mr W’s recent behaviour and engagement and noted Mr W denied any such urge.
[39] Dr Goodwin’s focus was on the issue of sexual drive rather than a drive in relation to violent offending. He could not detect any evidence of intense drive or urge, noting Mr W has always stated that he has never had any attraction to pubertal or prepubertal females and that he was quite willing to engage with appropriate treatment for sexual offending.
[40] Dr Blackwell also focused on the present situation, noting that Mr W had self reported to her that he acknowledged it was time to “grow up instead of blaming other people for stuff”. She also noted his current intention to settle into a domestic relationship.
[41] Mr Britton on the other hand considered that Mr W’s offending history, and prior psychological assessments, when taken with his current assessment indicated that he had such an intense drive or urge to commit offences of violence.
[42] It is helpful to consider Mr W’s past offending in more detail. Mr W reported that the background to the violent offending in 1997 was that his girlfriend at the time had told him she was going to a party with his sister. Although he told the two women he felt relaxed about that, in fact he harboured thoughts of jealousy and insecurity that he carried with him as he went drinking and became intoxicated with an associate later that day. Mr W said he assaulted the first victim, a male stranger, because the man smiled at him and his associate as he walked past. He considered that was “over familiar” and so responded with serious violence followed by robbery. Mr W then attacked strangers including the publican and the publican’s wife. After knocking the publican’s wife to the ground and kicking her in the face, he kicked her in the genital area. She required surgery as a result.
[43] In Mr Britton’s opinion Mr W’s conduct in 1997 indicated he was undeterred by the presence of bystanders and their attempts to intervene, which is evidence of a strong urge towards violence.
[44] Similarly, the circumstances which led to Mr W attacking the father of the girl that he raped and indecently assaulted are evidence of an urge towards violence. It appeared that when Mr W became aware the father knew of the sexual assault on the man’s daughter his response to it was to assault the father to the head with a garden rake.
[45] Mr W’s convictions for violence at the prison are also relevant. In September
2005 Mr W and another inmate had a fight. They were separated by two prison officers. When Mr W was pushed into his cell by the officers he immediately came out of the cell and punched the first officer, causing him to stagger backwards and fall on his back. Mr W then turned to the other officer, punching him on the head also. That prison officer stumbled backwards and hit his head on the cell door. As a result he was knocked unconscious. It was only when other staff arrived that Mr W was able to be restrained.
[46] More recently there was an incident in November 2014 involving an assault on a prison officer. Mr W delivered numerous punches to the officer’s head. The incident only ceased when other Corrections officers were able to come and restrain
Mr W. Mr W says he was provoked, but the intensity of his actions in both those assaults in the prison support a finding of an intense drive or urge to commit serious violent offending.
[47] There are other instances of misbehaviour by Mr W in prison. Although they did not lead to criminal charges they are contained in a misconduct report. The Court may consider the further material provided by the applicant concerning Mr W’s conduct in prison, even though it did not amount to or lead to formal criminal charges and convictions.14
[48] Taken overall, I prefer the evidence of Mr Britton on this issue. I consider that the urge or drive need not be presently manifested. Mr Britton directly addressed the issue of a latent or underlying drive or urge. I find his evidence on the issue more convincing. Mr W’s ruminations can lead to him building an intense drive or urge to act violently. I am satisfied that there is evidence that Mr W has an intense drive or urge to a high level to commit violent assaults against others using hands and feet and, if necessary, weapons. Whether that urge or drive is unleashed will depend on the situations that Mr W finds himself in.
Does Mr W have limited self regulatory capacity?
[49] Dr Skipworth believes Mr W has a “significant deficit” in relation to this characteristic, which is evidenced by his ongoing aggressive outbursts in stressful situations when frustrated or challenged or when he perceives he is being denigrated. Mr W’s difficulties in the area have been exacerbated in the context of intoxication and have led to offending on many occasions.
[50] Dr Goodwin is of the opinion that there is some evidence in Mr W’s history of impulsivity, but no evidence of high emotional reactivity or an inability to cope with or manage stress and difficulties.
[51] Dr Blackwell accepted that the historical evidence indicates that Mr W has in
the past exhibited “limited ability” to self regulate his behaviour and emotions,
14 Public Safety (Public Protection Orders) Act, s 108.
which is consistent with his having borderline personality traits. But Dr Blackwell noted that during her interviews with Mr W he was emotionally stable at all times despite the sometimes intrusive and very personal nature of the questioning. She considers he may have obtained some improved control over his emotional reactivity.
[52] Mr Britton noted that at the time he interviewed Mr W on 20 August 2015 he was held in the Special Needs Block at Auckland Prison as a result of repeated aggressive and impulsive acts. He considered those acts were the result of Mr W’s pervasive and persistent emotional reactivity. Mr Britton noted that while Mr W had been provided with psychiatric and psychological treatment to assist with his emotional reactivity and depressive ideation they did not appear to have produced lasting or robust improvements in terms of Mr W’s emotional function or self regulatory capacity at the time of the current assessment.
[53] Having regard to the evidence of the experts, particularly that of Dr Skipworth and Mr Britton, and to Mr W’s history, I am satisfied that Mr W has limited self regulatory capacity to a high level. He is unable to cope with or manage stress and difficulties. That inability to regulate his behaviour was apparent in his earlier offending and it is still apparent even in the regulated environment of a prison.
Does Mr W have an absence of understanding or concern for the impact of his offending on actual or potential victims?
[54] Dr Skipworth considered that Mr W has “some” deficits in the area of empathetic understanding but did not consider he was without any understanding in this area.
[55] Dr Goodwin said he was unable to ascertain any absence of understanding or concern, noting that Mr W had expressed concern as to how his release might be seen by the victims and the victims’ family. He considered Mr W had the ability or capacity for empathy and an understanding of the deleterious nature of his actions on others.
[56] Dr Blackwell noted Mr W was able to report concern and describe the likely impact of his past offending on his victims. He had a very strong shame presentation. However she did accept that he exhibited a limited ability to feel empathy or to have emotional understanding of others.
[57] Mr Britton considered that it was of concern that a number of Mr W’s victims had been strangers or recent acquaintances. He noted that some of the victims had been selected in order to cause anguish to third parties such as victims’ family members. Attempts to interrupt Mr W during commission of the offences had resulted in him assaulting bystanders or those attempting to intervene. In addition, in his interview with Mr Britton, Mr W continued to blame the victim of his 2014 assault. I note that Mr W has formally complained about the prison officer’s behaviour.
[58] Mr Britton noted that while Mr W was reported to have gained some insight into his offending-related attitudes during recent treatment, he did not engage in other aspects of the treatment as he was concerned with how others might view him.
[59] Mr Britton considered that Mr W’s history indicated that he acted with disregard to the impact of his offending on his victims. But taken overall, the evidence suggests that on reflection, Mr W has some, albeit limited, understanding for the impact of his offending on his victims.
[60] I find that while there is evidence Mr W has an absence of understanding or concern for the impact of his offending on some victims, which still presents to a degree, it cannot be said to be present to a high level. Although Mr W lacks empathy for his victims he has expressed some understanding that his offending affects others.
Does Mr W exhibit poor interpersonal relationships or social isolation or both?
[61] Dr Skipworth considered that Mr W has clear deficits in the area, although noting that he has been able to maintain a relationship with his partner and attending clinicians.
[62] Dr Goodwin also noted that Mr W had been able to maintain a prison based relationship with his partner. However he acknowledged that Mr W had considerable social isolation within the prison setting.
[63] Dr Blackwell considered there was strong evidence Mr W had exhibited poor interpersonal skills and was socially isolated. He had not maintained any close relationship with family members with the exception of his partner.
[64] Mr Britton was of the opinion that Mr W’s history of violence and social isolation in prison indicated difficulties in forming interpersonal relationships which were further hampered by his requests to move when he encountered interpersonal difficulties. He noted the difficult family interrelationships. He assessed Mr W as having significant difficulties in maintaining positive interpersonal relationships.
[65] Mr W has been in prison for the majority of the last 20 years. Some of that time has been in isolation. When unable to cope he shuts himself off from others. While he has a relationship with a partner it is untested in the community. I am satisfied that Mr W displays a high level of both poor interpersonal relationships and social isolation.
Summary on the s 13(2) criteria
[66] Mr W exhibits all of the characteristics in s 13(2) but only three of them to a high level. Although that is sufficient to deal with the application insofar as not all of the criteria in s 13(2) are established to a high level, during the hearing I formed a clear view that Mr W did not meet the ultimate test, namely whether he posed a very high risk of imminent serious violent offending if released into the community. I dismissed the application on that ground. I propose to set out my reasons for that view given the public interest in this application.
Does Mr W pose a very high risk of imminent violent offending?
[67] Section 9 directs the experts to address the ultimate issue of whether there is a very high risk of imminent sexual offending by Mr W.
[68] Dr Skipworth was of the opinion that the risk is high but in his opinion there was no information suggesting it was imminent. Again, however, Dr Skipworth’s focus and direction in his report was on the threshold for sexual offending.
[69] Dr Goodwin expressed his opinion in a rather unusual way, stating that he could not at the time “be convinced that Mr W does pose a very high risk of imminent serious sexual or violent offending”, albeit that he acknowledged that the risk of reoffending would clearly escalate in the community with the use of drugs and alcohol.
[70] In Dr Blackwell’s assessment she found no data that could found a conclusion that Mr W was driven to or planning to commit violent or sexual offending immediately upon release. She agreed that the conditions under which he is most likely to violently offend include those in which he is under the influence of drugs or alcohol and where he is in a situation that triggers his shame and feelings of defectiveness response.
[71] Mr Britton on the other hand was of the opinion that reoffending could occur “at any time”, and if Mr W was in a community setting and had access to alcohol or other drugs then violent reoffending could occur at the earliest opportunity. In his opinion while:
It is possible that under … secure conditions he may be able to communicate his thinking and distress to professional supporters before committing violence, … that has not always been protective for him in the past and therefore it is assessed that Mr W has an imminent risk of future relevant offending.
[72] Of the experts who gave evidence for the PPO application, only Mr Britton was of the opinion that Mr W had an imminent risk of relevant offending. He considered that if Mr W was in a community setting and had access to alcohol or other drugs, then violent offending could occur at the earliest opportunity.
[73] The experts’ opinions in relation to whether Mr W posed a very high risk of imminent serious violent offending were informed in large part by reference to the actuarial risk assessments.
[74] In terms of the actuarial assessments, on the RoC*RoI Mr W had a RoC*RoI score indicating a high risk of imprisonment within five years of being released. I put to one side the Automated Sexual Recidivism Scale (ASRS) as this application is now advanced on the basis of the serious violence. On the Violence Risk Scale (VRS) 18 of the 20 dynamic items were identified as moderately or strongly related to his current violent risk. The identified factors were violent lifestyle, criminal personality, criminal attitudes, work ethic, criminal peers, interpersonal regression, emotional control, violence during incarceration, weapon use, insight into violence, substance abuse, community support, release to high risk situations, violent cycle, impulsivity, and cognitive distortion, compliance with supervision, security level of release, institution. These factors are considered potential treatment targets for Mr W will provide a base line for change.
[75] A number of points must be made about those actuarial assessments. Mr W falls into the “high risk” category for the VRS. That is the highest category that there is. While Mr W falls in the medium to high on the RoC*RoI scale rather than the very high for that scale, as the Court of Appeal have confirmed it is necessary to consider the actuarial assessments tools in context. As Dr Skipworth said the best form of risk assessment is a multi method assessment which looks not only at the risk assessment tools but also takes into account the clinical assessments of the individual, in this case Mr W.
[76] Despite the evidence from the experts the issue is ultimately a matter for the Court to determine. In Barr v Chief Executive of the Department of Corrections, commenting on the Parole Act, the Court of Appeal observed:15
[32] We wish to make it clear, however, that first instance Judges need not accept it as necessary, or right, to rubber stamp opinions of health assessors advanced by the Department of Corrections in ESO applications (and we make it clear that the Judge did not do that in this case). What is required is a careful assessment of all the historical and current factors, along with expert opinions of others, bearing in mind that an ESO can have substantial ongoing impact on an offender who has already completed the sentence imposed by the Court for the offending. The risk of reoffending has to be such that cannot properly be ignored when viewed against the gravity of likely re-offending. …
15 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006.
[77] In R v Peta the Court of Appeal confirmed that what is required is an individualised risk assessment taking into account all relevant factors.16 Risk assessments and the related judicial decision making for risk management are best informed through an individualised formulation of risk. This should draw upon a variety of different sources of information in an attempt to identify risk factors within an aetiological (causative) framework. This recognises that risk is contingent
upon factors that are both environmental and inherent in the individual. Such an approach also helps avoid the shortcomings of a mechanical and potentially formulaic assessment of risk, one that is overly reliant on static historical factors and potentially insensitive to features of the individual that change with time and context.
[78] Patterns of past behaviour can be clear indicators of risk. In this regard Mr W’s actions whilst in custody in prison, particularly in relation to the violent offending, are relevant.17
[79] Returning to Mr W’s case the Court must be satisfied, on the balance of probabilities, of a very high risk of imminent serious violent offending if Mr W is released from prison into the community. On the basis of the evidence and Mr W’s past history, I am satisfied that Mr W is at a very high risk of committing a serious violent offence after release. The issue is whether the risk is imminent.
[80] Imminent is defined in the Act as meaning:
in relation to the commission of serious … violent offences by a person, … that the person is expected to commit such an offence as soon as he or she has a suitable opportunity to do so.
[81] Mr Dufty submitted that a suitable opportunity will only arise when other factors are present which allow an offender to commit the crime. In Mr W’s case that would be where other people are present and he feels provoked or antagonised by them. Obviously serious violence can only be inflicted in circumstances where
there is a victim present.
16 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627, (2007) 22 CRNZ 925 at [52].
17 Rosewarne v R [2015] NZCA 537; R v Neketai [2015] NZHC 396.
[82] In my judgment the concept of a suitable opportunity in this context carries with it the connotation that the offender would actively seek out the opportunity. A paedophile presenting an imminent risk, for instance, would seek out opportunities to be alone with children to commit the offending. It suggests a very brief time within which the serious violent offending will take place, so that it will take place, if not immediately, certainly very soon after release.
[83] I note that it appears Parliament considered the imposition of a PPO would be for rare or extreme cases where the offender was certain to offend again. Importantly it was expected a PPO would only be made once a year or perhaps one every two years. Hansard records Hon Phil Goff’s comments on “imminent”:
I want to refer to the definition of the word “imminent” because I think it is particularly important to what some people see as the rather extreme nature of the power that is being exercised here. “ ‘Imminent’ in relation to the commission of serious sexual or violent offences by a person, means that the person is expected to commit such an offence as soon as he or she has a suitable opportunity to do so”–that is what the word imminent means. As Minister of Justice, I dealt with cases like this. I had reports from psychologists and I had reports from people who worked within the system that if person A was to be released, on the way out of the prison, if an opportunity arose, that person was so driven that they would commit an offence, so we are not talking about the use of extreme powers in the cases of people where there might be a whole lot of alternatives in terms of how to deal with them.
…
… What the Justice and Electoral Committee was advised was that over a
10-year period, maybe there would be five people–five to 12 people–who would be encompassed by it. That is maybe one a year, or maybe one every
2 years. We are talking about extreme cases where the balance moves from
the right of the person who had already committed a serious violent or sexual offence to be released at their end of their sentence. If they are certain to offend again, and that is the clinical judgment and the independent judicial judgment made about that individual, then in my mind the balance switches to protecting the likely victim of that individual.
[84] That is also consistent with the object and principles of the Act, namely that orders are made to prevent “almost certain harm” and that an order will only be made where the magnitude of the risk justifies it. While in certain circumstances Mr W has a drive or urge to commit violent offending, it is driven by conflict or confrontation. If the circumstances of conflict and confrontation do not arise, then Mr W’s desire to offend will not be engaged.
[85] On the experts’ evidence there are people who, given the opportunity would seek out the kind of circumstance relatively quickly from their release, and would effectively take the first opportunity, within hours or at most days of release to offend. However, the evidence falls short of satisfying me, even to the balance of probabilities standard, that upon release Mr W would commit or inflict violence on a victim on the first suitable occasion. The violence that Mr W becomes involved in arises in situations of conflict where he perceives he has been slighted or criticised. He reacts violently because he is not otherwise able to cope. The position is exacerbated if he has access to drugs or alcohol. If those situations are avoided, Mr W will not be at risk of offending.
[86] Having reviewed the material before the Court I am not satisfied on the balance of probabilities that there is a high risk of imminent serious violent offending by Mr W on his release from prison. There is a risk that over time in a confrontational situation he will commit a violent offence. On the evidence, however, I am not able to say that that is imminent.
Result
[87] The application for the PPO is declined.
Suppression
[88] After the application was made Mr W was granted interim name suppression.18 That was extended to the end of the hearing. At the conclusion of the PPO hearing the interim name suppression was continued further until the delivery of the reasons judgment on the ESO. Mr W’s application for final name suppression
is dealt with in the reasons judgment relating to that application.
Venning J
18 W v Chief Executive of Department of Corrections [2016] NZHC 469.
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