Connor aka Clarke v Chief Executive of the Department of Corrections

[2012] NZHC 1679

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2004-409-000232 [2012] NZHC 1679

UNDER  THE PAROLE ACT 2002

BETWEEN  JOHN ALBERT CONNOR AKA CLARKE Applicant

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:         11 July 2012

Appearances: P N Allan for the Applicant

J E Mildenhall for the Respondent

Judgment:      11 July 2012

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      Mr Connor seeks cancellation of the extended supervision order that was imposed on him by consent in 2005.

[2]      Section 107M Parole Act 2002 provides that the Court may order cancellation only if the applicant satisfies the Court that he is no longer likely to commit any of the relevant offences referred to in s 107B(2) within the period of the order.

[3]      Although the order in question was imposed in April 2005, it was not actually activated until 2008.  It was a 10 year term and accordingly the order is not due to expire until 2018.

[4]      The relevant offences referred to in s 107B(2) are all sexual offences against children or young people under the age of 16 years.

CONNOR AKA CLARKE V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC CHCH CRI-2004-409-000232 [11 July 2012]

[5]      For  reason  which  will  become  obvious,  Corrections  does  not  oppose

Mr Connor’s application for cancellation but is adopting a neutral stance.

[6]      Mr Connor’s application was originally supported by two reports; one from a clinical psychologist, Dr Wilson, and the other from a counsellor.

[7]      The counsellor’s report was of relatively limited assistance.

[8]      But Dr Wilson’s report, written in May 2011, suggested that the risk of sexual offending was not focussed towards children and that the most likely risks were focussed toward fraud and reactive non-sexual violence.

[9]      Mr Connor has only ever committed one sexual offence (albeit an extremely serious one) against a person under the age of 16, and that involved a girl aged 15.

[10]     While in prison, he underwent the Kia Marama programme.  Positive gains were made and the Plethysmyograph reassessment at the end of the programme indicated no current sexual arousal to children or teenagers.

[11]     In addition to the Wilson report, I have also had the benefit of a more recent report from another clinical psychologist, Ms Smith.

[12]     The report addresses the factors which the Court is required to consider in deciding whether to impose an extended supervision order in the first place.  Those factors are:

(a)       The nature of  any likely future sexual  offending by the offender, including the age and sex of the likely victims.

(b)      The offender’s ability to control his or her sexual impulses.

(c)       The offender’s predilection and proclivity for sexual offending.

(d)      The  offender’s  acceptance  of  responsibility  and  remorse  for  past

offending.

[13]     The report raises some general matters of concern such as Mr Connor’s propensity to threaten people, his lack of cooperation with the authorities, rejection of supervision and breaching of conditions.  These factors do bear on risk and, as the report notes, he is assessed at being of medium to high risk of sexual re-offending against adults. That risk is described in the report as significant.

[14]     However,  what  is  crucial  for  present  purposes  is  that  his  risk  of  sexual offending against children is said to be less well defined and assessed as moderate.

[15]     Key points made in the report are:

There  is  no  evidence  to  suggest  that  Mr  Connor  has  an  ongoing

predilection or proclivity for child sex offending.

There has been no detected sexual offending since 1997.

For over a period of five years, he has demonstrated an ability to manage his  sexual behaviour in the community, there being no concerns about

likelihood of sexual offending against children.

At the time of the previous report in 2004, his ability to manage his sexual behaviour in the community had not been tested as it has been now.  The fact he has successfully managed his risk is consistent with the

assessment done at the end of the Kia Marama programme.

He appears to have both the motivation and the ability to manage his

sexual behaviour in the community.

He  does  not  minimise  his  sexual  offending,  nor  attempt  to  shift

responsibility onto victims.  He is recorded as having expressed regret.

If he were to sexually re-offend, it would most likely be against an adult female.

[16]     While the risk of future violence and an adult sexual offence is obviously of concern, the central issue for me today is whether the evidence satisfies me that Mr Connor is no longer likely to commit a sexual offence against a child or young person.

[17]     In my view, Ms Smith’s report means there can lawfully be only one answer to that question.  The report is comprehensive, carefully considered and compelling. It explains why Corrections has quite responsibly decided not to oppose the application.

[18]     In short, the report satisfies me that Mr Connor is no longer likely to commit any of the relevant offences within the remaining term of the extended supervision order.

[19]     The  extended  supervision  order  made  on  7  April  2005  is  accordingly cancelled with immediate effect.

Solicitors:

P N Allan, Christchurch, [email protected]

Crown Law, Wellington