De Lange v New Zealand Police
[2021] NZHC 476
•11 March 2021
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-501
[2021] NZHC 476
BETWEEN DANIEL DE LANGE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 March 2021 Appearances:
K Lamb for the Appellant
M Djurich for the Respondent
Judgment:
11 March 2021
JUDGMENT OF GORDON J
This judgment was delivered by me on 11 March 2021 at 3.30 pm.
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Manukau Counsel: K Lamb, Auckland
DE LANGE v POLICE [2021] NZHC 476 [11 March 2021]
Background
[1]The appellant, Daniel De Lange was found guilty after a Judge alone trial of:1
(a)doing an indecent act on a young person;2 and
(b)indecent assault.3
[2] On 10 November 2020, Judge T V Clark sentenced Mr De Lange to five and a half months’ home detention and made an order for registration under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act).4
[3] This appeal relates to the registration of Mr De Lange as a child sex offender. The principal ground of appeal is that the Judge erred in taking into account evidence relating to prior acquittals and unproven allegations. There is no appeal against the sentence of home detention.
Facts
[4] Mr De Lange’s sexual offending occurred in respect of the same victim on two separate occasions. The victim and Mr De Lange were unknown to each other.
[5] On 11 February 2019, both Mr De Lange and the victim were swimming at a public swimming pool. The victim was 15 years’ old while Mr De Lange was 30 years’ old. He approached the victim and began talking to her. During this conversation, Mr De Lange suggested that the victim involve herself in modelling. He then offered her $50 to pose in photographs with his car. The victim was uncomfortable and turned her back to swim away from Mr De Lange. As she did this, Mr De Lange cupped the victim’s buttock. The victim swiped his hand away and climbed out of the pool. This conduct was the subject of the charge of doing an indecent act.
1 Mr De Lange was also convicted of failing to answer District Court bail under the Bail Act 2000, s 38. However, that offence is not relevant to the appeal against registration as a child sex offender.
2 Crimes Act 1961, s 134(3); Maximum penalty of seven years’ imprisonment.
3 Crimes Act 1961, s 135; Maximum penalty of seven year’s imprisonment
4 New Zealand Police v De Lange [2020] NZDC 23441 at [33] and [52].
[6] The events that were the subject of the second charge occurred on 13 May 2019. Both parties were again at the same public swimming pool. By then the victim had turned 16 years and Mr De Lange had turned 31 years. The victim was waiting in line to use a drinking fountain. She was wearing a bathing suit. Mr De Lange saw the victim and stood near her for a short period of time. When the victim leaned forward to drink from the water fountain, Mr De Lange leaned over to place his water bottle on the ledge in front of her. Contemporaneously, he placed his hand on the victim’s buttock. The victim recognised Mr De Lange from the prior incident and called her mother. The victim’s mother travelled to the pool and alerted the lifeguards. The lifeguards spoke to Mr De Lange and he gave them a false name. The lifeguards then followed him out to his vehicle and obtained the registration number which was provided to the Police.
District Court decision
[7] On 10 November 2020, Judge Clark sentenced Mr De Lange to five and a half months’ home detention and made an order for registration under the Act.5 The Judge recognised that the offending was “at the lower end of the scale for indecent assault offending”.6 Yet, the Judge noted the significant effect that Mr De Lange’s behaviour had on the young victim, detailed in her victim impact statement.7
[8] Judge Clark addressed two pre-sentence reports dated 23 September 2020 and 3 November 2020 (PAC reports). The Judge noted that both PAC reports revealed Mr De Lange’s unwillingness to address his offending.8
[9] Judge Clark extensively discussed a Psychological Assessment Report dated 29 October 2020 which had been ordered for sentencing.9 In reviewing the report, the Judge had regard to:
5 At [33] and [52].
6 At [9].
7 At [9].
8 At [11]-[12].
9 At [13]-[26].
(a)prior allegations of violence against Mr De Lange which resulted in charges being laid, but dismissed or withdrawn by police;10
(b)prior allegations of sexual misconduct against Mr De Lange, several of which resulted in unsuccessful prosecutions;11
(c)Mr De Lange’s positive family environment and ability to engage with people of his own age;12
(d)Mr De Lange’s explanation of the present offending as an accident;13 and
(e)The results of tests conducted by the writer of the report which in totality placed him at level IVb (well above average) risk of further sexual reoffending:14
(i)Mr De Lange’s RoC*Rol score, which placed him within a group of offenders who have a low risk of imprisonment;15
(ii)Mr De Lange’s Static-99R static risk score, which placed him in the well above average category;16
(iii)Mr De Lange’s STABLE 2007 stable dynamic factors which influence the likelihood of recidivist sexual offending.17 Those which were problematic included capacity for relationship stability, hostility towards women, general social rejection, lack of concern for others, impulsive acts, poor problem-solving skills, sex drive/sexual preoccupation, deviant sexual interests and co-operation with supervision.
10 At [15].
11 At [16]-[17].
12 At [18].
13 At [19]-[20].
14 At [25].
15 At [21].
16 At [22].
17 At [23].
[10] In assessing the risk Mr De Lange posed to the sexual safety of children, Judge Clark had regard to the factors in s 9(3) of the Act.18 These included: the offending was at the lower end of the scale of sexual offences;19 a year had elapsed since the offending occurred;20 the ages of Mr De Lange (30 and 31 years’ old) and the victim (15 and 16 years’ old) and the 15 year disparity between them;21 the written risk assessment;22 the victim impact statement;23 and the submissions.24 The Judge concluded that Mr De Lange posed a real and genuine risk to the sexual safety of children as an untreated sex offender who was unwilling to be treated.25 The Judge then made a registration order, influenced by the “combination of factors” referred to above.26
Relevant statutory framework
[11] Section 9(1) of the Act provides that the Court may make a registration order where the Court imposes on a person who is aged 18 years or older (at the time of the offending) a non-custodial sentence in respect of a conviction for a qualifying offence. Both doing an indecent act on a young person under 16 years of age and indecent assault (if the victim is under 16 years of age) are Class 2 qualifying offences.27 As Mr De Lange was sentenced to a non-custodial sentence, registration was subject to the making of a registration order.28
[12] A registration order may be made only if the Court is satisfied that the person poses a risk to the lives or sexual safety of one or more children, or of children generally.29 For the purpose of assessing the risk posed by the offender, the Court must consider:30
18 At [43].
19 At [43]; Section 9(3)(a).
20 At [43]; Section 9(3)(b).
21 At [43]; Section 9(3)(c)-(f).
22 At [44]-[45]; Section 9(3)(g).
23 At [46]; Section 9(3)(h).
24 At [47]-[48]; Section 9(3)(i).
25 At [50].
26 At [49].
27 Schedule 2, cls (2)(e) and (f) respectively.
28 Section 9.
29 Section 9(2).
30 Section 9(3).
(a)the seriousness of the qualifying offence;
(b)the period of time that has elapsed since the offence was committed;
(c)the age of the person;
(d)the age of the person at the time of the offence;
(e)the age of any victim of the offence at the time of the offence;
(f)the difference in age between the victim and the person at the time of the offence;
(g)any written assessment of the risk posed by the person;
(h)any submission or evidence from any victim of the offence;
(i)any other submission or evidence relating to the risk posed by the person; and
(j)any other matter that the court considers relevant.
[13] In D v Police, the majority of the Supreme Court held that s 9 of the Act involves a two-stage test:31
(a)The first stage of the process is to determine whether the threshold risk has been met, having considered the factors set out in s 9(3). That risk is a “real or genuine” risk. The phrase “serious child sex offender” contained in s 3 of the Act is not a defined term, is not used in s 9, and is therefore not of assistance to the assessment of threshold risk; and
(b)If the threshold has been met, the second stage is whether the discretion to make a registration order under s 9(1) should be exercised having
31 D v Police [2021] NZSC 2 at [103]-[108] per Winkelmann CJ and O’Regan J, and at [260] per Glazebrook J agreeing with the former.
regard to the level of risk posed by the offender. In order to embark on that assessment, the Court must assess the nature and seriousness of the risk posed by the offender. Once a Judge has determined the nature and seriousness of the risk posed by the offender, the Judge must determine whether the risk is sufficient to warrant the making of a registration order. That will involve a balancing of the protective objectives of the registration order against the level of intrusion into the rights of the offender.32
Issue on appeal
[14] The principal ground of appeal is that the Psychological Assessment Report relied on by the Judge when making the order to place Mr De Lange on the Child Sex Offender Register placed too much weight on previous unproven allegations of similar offending and allegations where charges had been dismissed.
Appellant’s submissions
[15] Mr Lamb, for Mr De Lange, submits the Judge erred by having regard to the parts of the Psychological Assessment Report that contained various allegations of conduct that was the subject of charges that had been dismissed or where no charges had been laid. Although not specified as a ground of appeal, Mr Lamb also submits the tests and conclusions drawn in the report are inaccurate and cannot be relied upon in assessing Mr De Lange’s risk of recidivist offending.
[16] Mr Lamb submits that as a consequence the Judge erred in her risk assessment. Mr De Lange does not fit the criteria for a “serious child sex offender” or fulfil the requirement of a “real and genuine risk”, having regard to Goose v Police,33 Johnston v Police,34 and Fowler v R.35
32 At [108].
33 Goose v Police [2017] NZHC 2453.
34 Johnston v Police [2017] NZHC 1718.
35 Fowler v R [2017] NZHC 1892.
Respondent’s submissions
[17] Mr Djurich, for the respondent, submits the ambit of the Court’s risk assessment under s 9 of the Act enables unproven allegations and prior acquittals to be taken into account. This is supported by analogy to extended supervision orders (ESOs), preventive detention and bail determinations.
[18] Mr Djurich submits the Judge did not err in her assessment of risk. As to the second stage of the test, Mr Djurich acknowledges that Judge Clark did not undertake the balancing exercise. However, he submits the second stage of the test is satisfied in this case. Mr De Lange poses a real risk to the safety of children generally that is not outweighed by the intrusion of his rights consequent on registration.
Content of the Psychological Assessment Report
[19] The Psychological Assessment Report dated 29 October 2020 was prepared by Maeva Grzes, a registered clinical psychologist. Ms Grzes met with Mr De Lange for two interviews, which together lasted three and a half hours. A variety of information was available to Ms Grzes in writing the report, including Mr De Lange’s criminal history, a record of charges extracted from Corrections Business Reporting and Analyses (“COBRA”), PAC reports and information from an Oranga Tamariki report. Ms Grzes’ report detailed:
(a)the manner in which Mr De Lange presented himself;
(b)his pattern of previous conduct involving unproven allegations and acquittals;
(c)his personal background and index offending;
(d)his current personal circumstances, including ongoing sentences, employment, lifestyle choices and Millon Clinical Multiaxial Inventory-Version Four self-report questionnaire results;
(e)his lack of participation in any treatment programmes;
(f)his subjection to bullying in his childhood and responses to that throughout his life;
(g)his likelihood of reoffending, having regard to RoC*Rol, Static-99R and STABLE 2007 test results; and
(h)Ms Grzes recommendations in relation to Mr De Lange.
[20] The aspects of the report primarily relevant to this appeal are Ms Grzes references to Mr De Lange’s unproven allegations and prior acquittals,36 which are as follows:
(a)On 5 February 2013, Mr De Lange was acquitted of two charges of indecent assault of a female aged between 12 and 16 years. He explained that he was accused of brushing past two girls at a pool and indecently touching them;
(b)On 9 December 2016, Mr De Lange was acquitted of two charges of indecent assault against a female aged under 12 years. He explained that his friend’s girlfriend accused him of indecently touching her seven year old daughter. However, he considered that the false allegations were spurred by her jealousy regarding his friendship with her boyfriend, and his refusal to engage in a threesome with the couple, as “she was ugly”;
(c)An Oranga Tamariki report which indicated that in 2002, when Mr De Lange was 13 years’ old, he had indecently assaulted two boys, aged eight and 10 years’ old. He claimed that the boys’ parents were going through a divorce and the mother used these allegations against him to gain custody of the children; and
36 The Police had sought to admit evidence of the conduct relating to the two prior acquittals as propensity evidence but the application was dismissed pre-trial: Police v De Lange [2020] NZDC 10408.
(d)An Oranga Tamariki report which indicated that in 2008, when Mr De Lange was 20 years’ old, he ran away with a 13 year old girl. Police were contacted and the girl was returned to her parents.
[21] I also note that in addition to the above allegations, Ms Grzes states that Mr De Lange disclosed to her a relationship he had had with a 13 year old girl who was his neighbour, when he was aged 18. Mr De Lange said the relationship was encouraged by her mother but that they did not engage in sexual intercourse.
[22] Ms Grzes also included Mr De Lange’s responses when spoken to about the index offending. In respect of the offending on 11 February 2019, he stated he was trying to be nice to the victim. He denied any sexual motivation for the offending. As to the offending on 13 May 2019, Mr De Lange described it as an accident, stating he simply brushed past the victim. He said he had just come out of the sauna and his eyesight was blurry.
[23] As to Mr De Lange’s risk, I have referred at [9](e) to the results of the tests conducted by Ms Grzes. Additionally she noted that Mr De Lange has limited protective factors. Overall, based on the information available and after consideration of static and dynamic risk factors and clinical judgement, her opinion was that Mr De Lange poses a high risk of further sexual reoffending. If Mr De Lange were to reoffend sexually, this is likely to be in the form of an indecent assault against a teenage or adult woman. Ms Grzes continued that this is likely to be an impulsive assault in the context of a lack of consequential thinking, sexual arousal and attraction, a feeling of loneliness and a poor response to social cues.
Discussion
[24] Section 9(3) of the Act provides for the matters that the Court must consider in assessing the threshold risk posed by an offender. The pertinent factors are “any written assessment of the risk posed by the person”,37 and “any other matter that the
37 Section 9(3)(g).
court considers relevant”.38 The question is therefore whether unproven allegations and prior acquittals are relevant to the risk posed by an offender.
[25] Mr Djurich submits that unproven allegations are utilised by the Court for risk assessment in relation to ESOs, preventive detention and bail determinations. Consequently, there is no basis to suggest that they are irrelevant to the risk assessment under the Act, which involves a similar exercise.
[26] Under the Parole Act 2002, a sentencing court may make an ESO in respect of an offender who has been convicted of a serious violent or sexual offence if, following the hearing of an application made under s 107F, the Court is satisfied, having considered the matters addressed in the health assessor’s report as set out in s 107F(2A), that:39
(a)the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and
(b)there is a high risk that the offender will in future commit a relevant sexual offence and/or there is a very high risk that the offender will in future commit a relevant violent offence.
[27] The health assessor’s report for an ESO may take into account any statement of the offender or any other person concerning any conduct of the offender, whether or not that conduct constitutes an offence and whether or not the offender has been charged with, or convicted of, an offence in respect of that conduct.40 The Court of Appeal has held that the capacity of the health professional to rely on this material in providing their reports necessarily means that the Court may equally have regard to it.41 There would be little point in the health assessor having regard to it if the Court could not.42 This is affirmed by the Court’s authority at any hearing to receive and
38 Section 9(3)(j).
39 Parole Act 2002, s 107I.
40 Section 107F(3).
41 W v Chief Executive of the Department of Corrections [2019] NZCA 460 at [32]. See also Clark v Chief Executive of the Department of Corrections [2016] NZCA 119 and Chief Executive of the Department of Corrections v Rimene [2015] NZHC 2721.
42 At [32].
take into account any evidence or information that it thinks fit for the purpose of determining the application or appeal, whether or not it would be admissible in a court of law.43
[28]Under the Sentencing Act 2002, preventive detention may be imposed where:44
(a)a person is convicted of a qualifying sexual or violent offence;
(b)the person was 18 years of age or over at the time of committing the offence; and
(c)the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date of any sentence (other than a sentence under s 87) that the court is able to impose.
[29] The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.45 A sentence of preventive detention cannot be imposed unless the Court has considered reports from at least two appropriate health assessors about the likelihood of the offender committing a further qualifying sexual or violent offence.46 In Lepper v R, the Court of Appeal commented that:47
[34] We do not accept that there is any requirement that a sentencing judge identify and exclude previous conduct that has been the subject of an acquittal. Dr Parker was entitled to include any conduct that he considered relevant to his assessment and the Judge was entitled to accept that assessment. The fact that judges in other cases did not consider it appropriate to do so does not mean that there is any general constraint.
[30] In R v Leahy, Thomas J considered that the health assessor had a proper basis for taking into account unproven allegations in their risk assessment.48 The health
43 Parole Act 2002, s 107H(2).
44 Sentencing Act 2002, s 87(2).
45 Section 87(1).
46 Section 88(1)(b).
47 Lepper v R [2016] NZCA 209 at [34]. Note that an application to the Supreme Court for an extension of time to file an application for leave to appeal was dismissed: Lepper v R [2018] NZSC 58.
48 R v Leahy [2019] NZHC 290 at [51].
assessor had referred to empirically derived risk assessment literature which stated that charges are relevant to a clinical assessment of risk, even where no conviction results (or it is quashed).49
[31] Finally, in hearing an application for bail, the Court may receive as evidence any statement, document, information, or matter that it considers relevant, whether or not it would be otherwise admissible in a court of law.50 In Thornton v Police, Katz J commented that any relevant information can be utilised to assess risk in a bail context, and the fact that earlier charges may have been dismissed does not mean that the surrounding circumstances out of which they arose can never be relevant.51
[32] Returning then to the Act. Section 9(3)(j) requires the Court to consider “any other matter that the Court considers relevant” in assessing risk. I consider this provision is necessarily unqualified having regard to the Court’s broad task in assessing both present and future risk. To limit the matters to only those which would be admissible at trial, and which have been proven, would unduly restrict the Court’s ability to undertake an effective risk assessment.
[33] This approach is supported by the risk assessment frameworks for ESOs, preventive detention and bail as summarised above. In each instance the Court has a wide ambit to assess a person’s level of risk. As noted, s 107F(3) of the Parole Act and s 88(3) of the Sentencing Act expressly permit health assessors (and thus the Court) to take into account unproven conduct, and s 20(1) of the Bail Act 2000 expressly permits a Court to take into account any matter that it considers relevant, whether or not it would be otherwise admissible in a court of law. However, the unqualified nature of s 9(3)(j) and also s 9(3)(g) (any written assessment of the risk posed by the person) together with the similarity between registration orders under the Act, ESOs and preventive detention, supports a similar interpretation to the provisions which apply to those other orders.
49 At [51].
50 Bail Act 2000, s 20(1).
51 Thornton v Police [2016] NZHC 105 at [16]-[18].
[34] Mr Lamb also makes a submission that prior acquittals and unproven allegations should not be taken into account when the Court considers whether or not to make a registration order, because a registration order is a “penalty”. Mr Lamb relies on the decision of the Supreme Court in D v Police,52 where the Supreme Court concluded that a registration order is a penalty “for the purposes of s 6 of the Sentencing Act and s 26(g) of the Bill of Rights”. The two provisions referred to in the quoted words deal with retrospective penalties. The discussion and decision of the Supreme Court,53 is directed at that issue. I do not consider it supports the wider proposition advanced by Mr Lamb.
[35]Mr Lamb additionally refers to s 9(4) of the Act which provides:
(4)A registration order is made at the time of sentencing and is a sentence for the purposes of Part 6 of the Criminal Procedure Act 2011 (appeals).
[36] In reliance on that provision Mr Lamb submits that because a registration order is a sentence, this is a further reason why the Judge erred in taking into account prior acquittals and unproven allegations. However that submission fails to recognise the words “for the purposes of Part 6 of the Criminal Procedure Act 2011”. That part of the Criminal Procedure Act deals with appeals. Section 9(4) of the Act does not provide that a registration order is a sentence for all purposes.
[37] Next Mr Lamb submits that s 24 of the Sentencing Act governs the approach to be taken to the evidence relied upon by a Court when satisfying itself that the s 9 criteria have been established. Section 24 provides:
24 Proof of facts
(1)In determining a sentence or other disposition of the case, a court—
(a)may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and
(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
52 D v Police, above n 31.
53 At [52]-[59].
(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:
(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:
(e)either party may cross-examine any witness called by the other party.
[38] This was an issue considered by Mander J in Rodgers v R.54 In that case the Court was considering an appeal against the imposition of a registration order under the Act. Mr Rodgers had pleaded guilty immediately before his trial started to a charge of indecently communicating with a 14 year old girl. He also faced two charges of sexual connection with the same young person and was found not guilty by a jury on those two charges. In sentencing Mr Rodgers the District Court Judge did not take into account evidence from the trial about the sexual connection charges. However, when it came to assessing Mr Rodger’s risk for the purposes of a registration order, the Judge did take the acquittals into account. Mr Rodgers appealed on the ground that the Judge erred in doing so because that assessment was inconsistent with the jury’s verdicts.
[39] Counsel for Mr Rodgers submitted, as Mr Lamb has done in this appeal, that s 24 governs the approach of a court in conducting a risk assessment.
54 Rodgers v R [2018] NZHC 1800.
[40] While Mander J doubted whether s 24 applied to the decision-making process required of a judge under s 9 of the Act, he considered it was not necessary for the purpose of deciding the appeal to come to any concluded view. But the Judge also stated that he considered the underlying principles behind the prescription of s 24 equally applied when considering the correct approach to the use of evidence adduced at trial which may bear on the making of a registration order.55
[41] Mander J referred to the approach required of a judge to the factual basis upon which sentencing is to proceed after a trial, namely that a judge who has heard the evidence in a jury trial is entitled, where the evidence supports it, to reach their view of the facts relevant to sentencing provided such a view is not inconsistent with the verdict.56 Mander J accordingly concluded that the District Court Judge had erred in not finding himself bound by the jury’s not guilty verdicts in imposing the registration order.
[42] Mander J then considered that arguably, the making of a registration order is akin to the making of an ESO. He said:57
[46] Arguably, the making of a registration order is akin to the making of an ESO. It is also focussed on similar considerations that are to the fore in assessing the appropriateness of a sentence of preventive detention, namely the assessment of risk. The Court’s continued jurisdiction over the offender arises from the person’s conviction of a criminal offence. However, it is not suggested that for the purposes of making an ESO, nor when assessing the risk of reoffending and the safety of the public, a Court could take into account alleged offending of which the offender has been acquitted. Even if the Judge who heard the trial considered themselves well placed to assess the likelihood of the offender having committed the acts that constitute the offence, it would not be legitimate for a Court to exercise its jurisdiction over a person on the basis that he had committed those offences.
[43] The Judge then turned to allegations which had not been the subject of charges at the trial, noting that they may be available to be taken into account in determining risk. The Judge said:
[49] … However, a difficulty arises regarding the status of other events mentioned in Judge Gilbert’s sentencing decision concerning occasions, other
55 At [27].
56 At [29] citing R v Heti [1992] CRNZ 554 (CA) at 554.
57 At [46].
than those the subject of charges, when Mr Rodgers allegedly kissed the 14- year-old and had some form of physical contact with her.
[50] These incidents were not the subject of charges and the jury was not required to return verdicts or make findings in respect of that conduct. Because I have no knowledge of the trial evidence or the respective cases of the Crown and the defence as presented at trial, I am unsure whether factual findings as to whether such conduct took place would be inconsistent with the jury’s verdict. That evidence, at least potentially, may be available to be taken into account, together with the other circumstances relating to the charge of exposing the young person to indecent material, when assessing the issue of risk.
[44] Returning to Mander J’s conclusion that acquittal evidence could not be used in assessing risk for the purposes of both an ESO or a sentence of preventive detention, it appears that s 107F(3) of the Parole Act and s 88(3) of the Sentencing Act may not have been brought to the Court’s attention.
[45] An alternative view to that reached by Mander J (namely that prior acquittals may be taken into account) has support in the subsequent comments of the Court of Appeal on the use of acquittal evidence in Halalupe v R.58 Mr Halalupe, who had faced trial on five charges of indecent assault, appealed the admission as propensity evidence of a prior acquittal on a charge of indecent assault. His appeal was dismissed and the Court of Appeal set out the principle relevant to the use of acquittal evidence as follows:
[15] Acquittal propensity evidence can produce a reflexive reaction against admission. It is sometimes seen as offending the double jeopardy rule. Or it is said to be unfair that the same acts which resulted in an acquittal, or “finding of innocence”, can be raked up again in a later trial. These responses mistake both the function and status of acquittal propensity evidence.
[16] A prior verdict of acquittal is not a declaration of the defendant's innocence. The jury verdict is a unanimous (or majority) determination that the charge has not been proved to the requisite standards. It is an evaluation of the prosecution, rather than of the character of the defendant. As this Court observed in R v Degnan:
We find it difficult to endorse the approach taken in some of the Canadian cases that a verdict of not guilty is the equivalent of a declaration of innocence. That approach risks elevating perceived theory over the realities of criminal practice. In the vast majority of cases a jury, when returning a verdict of not guilty, cannot be taken as saying affirmatively they are satisfied the accused is innocent; what they are really saying is that they are not satisfied beyond reasonable
58 Halalupe v R [2019] NZCA 240.
doubt the accused is guilty. While our system of criminal justice does not allow a second trial, whatever the force of new evidence that may be discovered, it would be to tilt the balance too far in favour of the accused to have an absolute rule of exclusion of the evidence supporting the first complaint at a subsequent trial of an unrelated but sufficiently similar complaint.
[17] Whether the jury believed the defendant innocent cannot be said; they were not present at the crime and cannot say. The verdict affirms their collective uncertainty as to guilt. As Ms Ewing observed, juries do not give reasons, however hard lawyers may try to interpolate their thinking. The mere fact of an acquittal is an insufficient basis on which to assume that a complainant has been thoroughly discredited.
[18] Nor does the receipt of acquittal propensity evidence offend the double jeopardy rule. As this Court observed in R v Degnan, issue estoppel has no place in New Zealand criminal law. The defendant is not on trial in respect of the prior allegations. As propensity evidence, the prior allegations are admissible as circumstantial evidence probative of the trial charges. The prior allegations need not be proven to the criminal standard. But particular directions will be required to emphasise that the defendant is not being retried on the charges on which he or she was acquitted, in addition to more general propensity directions.
(citations omitted)
[46] The principles in Rodgers would be at odds with the comments of the Court of Appeal in Halalupe if Mander J’s conclusion on the limited use of acquittal evidence were extended to all circumstances in which a sentencing court, tasked with determining an offender’s risk under the Act, also had before it an offender’s prior acquittals in unrelated charges.
[47] Mr De Lange’s acquittals and the unproven allegations made against him include alleged conduct similar to that which is the subject of the present charges. The alleged victims were similarly young. Contrary to the view taken by Mander J, and for the reasons set out above, I consider the Psychological Assessment Report could take them into account as indicative of a risk that Mr De Lange would be more likely to reoffend than someone who did not have such allegations brought against them. To consider the acquittals and unproven allegations would be consistent with other risk assessment procedures and Halalupe v R. The Judge therefore did not err in considering Mr De Lange’s acquittals and the unproven allegations made against him when determining risk under s 9(2) and (3) of the Act.
[48] Mr Lamb also submits that the tests and conclusions drawn in the Psychological Assessment Report cannot be relied upon because they are inaccurate. However, he does not advance any evidence in support of this proposition except by way of a reference to Ms Grves comments in relation to the Static-99R. She said “As the Common Risk Language classifications are intended to describe relative risk, any reference to absolute risk probabilities should be interpreted with caution because of variability between samples”. Absent any evidence, there is no basis to suggest that the tests are so inaccurate as to be discounted. This is especially so given that Ms Grves recognised that the tests are not infallible detectors of recidivist offending. The Court can, and did in this case, take that potential for error into account.59 This does not appear to be a case on the margins where any inaccuracy may be determinative. Mr De Lange’s scores placed him in a high risk category. Further Ms Grzes’ final assessment was an overall one, based not just on the tests, but on all the information available to her as well as her clinical judgement. Therefore, the Judge did not err in considering the tests and conclusions drawn in the Psychological Assessment Report.
[49] Finally, as to whether the evidence establishes a relevant risk, Mr Lamb submits that Mr De Lange does not fit the criteria for a “serious child sex offender” or fulfil the requirement of a “real and genuine risk”, having regard to Goose v Police,60 Johnston v Police,61 and Fowler v R.62
[50] Firstly, the concept of “serious child sex offender” was said by the Supreme Court to be of no assistance to the determination of threshold risk.63 It is not necessary to consider whether Mr De Lange meets this definition (even though the Judge made reference to it). The test is whether Mr De Lange poses a real or genuine risk to the lives or sexual safety of one or more children, or of children generally.
[51] Secondly, Johnston v Police and Fowler v R may be distinguished insofar as the reports prepared in respect of the defendants in those cases assessed them as being
59 New Zealand Police v De Lange, above n 4, at [22], n 1.
60 Goose v Police, above n 33.
61 Johnston v Police, above n 34.
62 Fowler v R, above n 35.
63 D v Police, above n 31, at [105].
of a low likelihood of reoffending.64 This is a sharp distinction from Mr De Lange’s case, which places him at a high risk of reoffending. The written risk assessment, to which Courts must have regard, is influential in the assessment of threshold risk.
[52] As noted, the respondent recognises that the Judge did not explicitly undertake the balancing test set out in D v Police.65 The question is whether the imposition of a registration order is a proportionate response to the risk identified, having regard to the intrusion on the appellant’s rights that this will involve.66
[53] Having regard to the s 9(3) factors, it is fair to characterise Mr De Lange as of reasonably high risk of reoffending, even if that offending is considered to be of lesser seriousness. The offending was of an opportunistic nature. The Psychological Assessment Report and PAC reports demonstrate that he is unwilling to accept responsibility for his offending or undertake rehabilitative treatment. He continues to deny any liability for the present offending and for the conduct described in the allegations against him (acknowledging that they are unproven). That invites the conclusion that Mr De Lange poses a significant risk.
[54] Turning to the intrusion on the appellant’s rights, there is no indication or submissions made that Mr De Lange would be disproportionately affected by registration. Mr Lamb’s submissions were primarily directed at the consideration of unproven allegations in assessing the threshold risk stage of the test, rather than the balancing exercise. While the Judge did not undertake the second step, nevertheless the Judge did not err in concluding that a registration order should be made. Registration is proportionate to the risk posed by Mr De Lange, having regard to the intrusion on his rights consequent of registration.67
64 Johnston v Police, above n 34, at [47]; Fowler v R, above n 35, at [50].
65 Although, the appellant did not make any submissions on this point. I also note that the judgment of the Supreme Court in D v Police, above n 31, had not been delivered at the time of sentencing.
66 D v Police, above n 31, at [129].
67 Requirements relate to provision of personal information and reporting obligations.
Result
[55]The appeal is dismissed.
Gordon J
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