Department of Corrections v Bell

[2022] NZHC 2453

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2021-483-00016

[2022] NZHC 2453

BETWEEN

DEPARTMENT OF CORRECTIONS

Applicant

AND

DANIEL BELL

Respondent

Hearing:	16 September 2022
Appearances:	H C Mallalieu for the Applicant D M Goodlet for the Respondent
Judgment:	23 September 2022

JUDGMENT OF COOKE J

(Extended Supervision Order)

[1]        By application dated 14 October 2021 the applicant seeks an extended supervision order (ESO) in relation to the respondent pursuant to s 107F of the Parole Act 2002. The application seeks an extended supervision order for a period of five years.

[2]        The respondent has been released into the community subject to release conditions following a period of imprisonment. His release conditions come to an end in December 2022. The relevant offending involved six charges of indecent assault/indecent acts with girls under 12, sexual violation by unlawful sexual connection, doing indecent acts with a girl aged between 12 and 16, and four representative and two specific charges of indecently assaulting children. It involved seven young children. He was sentenced to eight years’ imprisonment with a minimum period of imprisonment for five years. The Court indicated that the sentence

DEPARTMENT OF CORRECTIONS v BELL [2022] NZHC 2453 [23 September 2022]

came “perilously close” to that of preventive detention.1 The sentence was confirmed by the Court of Appeal.2

[3]        As required, the application is supported by reports from Dr Angela Macfarlane, a registered clinical psychologist, dated 3 August 2021 and 2 September 2022. She was questioned at the hearing before me.

[4]        The respondent initially indicated an intention to oppose the application, but having taken the advice of his counsel, and also taking the opportunity to take advice from his own independent psychologist in a report dated 4 March 2022, he advised the Court that he does not oppose the making of the order, but suggested that the order should not be for five years, and that a period of two years should be imposed instead. I record that he had the benefit of a communication assistant at the hearing, and that he also gave evidence at the hearing.

[5]        I have also been provided with victim impact statements, and I acknowledge the impact and fears that the victims have referred to.

The requirements

[6]        Section 107I of the Act provides that the sentencing court may make an ESO. In the case of Mr Bell the ESO would arise under s 107I(2) on the basis that there has been a pervasive pattern of serious sexual offending, and that there is a “high risk” that Mr Bell will in future commit a relevant sexual offence. Under s 107IAA specific matters are identified which the Court must be satisfied of when assessing the risk. Under s 107F(2A) an application for such an order must be accompanied by a report by a health assessor directed to the matters that arise for the Court’s determination. As indicated such a report has been provided here.

[7]        In the present case the order is not opposed by Mr Bell. He agrees, after taking advice from an independent psychologist and counsel, that such an order is appropriate, although a shorter period is suggested. The order will help in providing him with the assistance that he will need to avoid re-offending.

1      R v Bell [2016] NZHC 51 at [18].

2      Bell v R [2017] NZCA 90.

[8]        When an application is not opposed it remains necessary for the Court to satisfy itself of the pre-requisites for the making of such an order, and it is also necessary for the Court to set out the basis for that satisfaction in a judgment. In short, the requirements of the legislation, and of open justice still need to be satisfied.

[9]        In Chisnall v Attorney-General the Court of Appeal declared that the terms of the legislation allowing imposition of an ESO were inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990.3 Leave to appeal to the Supreme Court has been granted.4 I have suggested that Chisnall may give rise to a need for some recalibration of the approach taken to the imposition of such orders.5 The Court of Appeal has also recently re-addressed Mr Chisnall’s case, and whilst it has not referred to any recalibration the Court has referred to giving the legislation as “rights- compliant” an interpretation and application as is available within the terms of the legislation.6

[10]      When such orders are consented to there is a different perspective, however. It will remain necessary for the Court to find that the imposition of the orders is demonstrably justified in a free and democratic society. The statutory requirements, including the level of the risk and need to protect the safety of the public, will need to be addressed in that light. But the further perspective arises from the appreciation of the person who is made subject to the order that the order is appropriate, and will impose measures for their ultimate benefit. Mr Bell needs assistance to help him to not reoffend. Following him obtaining independent advice he consents to what is proposed. I accept that this consent is a fully informed one. That is a relevant circumstance when assessing whether the ESO order should be made in the terms sought.

[11]      I also consider that it is of significance that Mr Bell has the ability to apply to discharge the ESO under s 107M if he became of the view that the limitation of his rights arising from the ESO were no longer justified. If such an application were later

3      Chisnall v Attorney-General [2022] NZCA 24, (2022) 13 HRNZ 107.

4      Attorney-General v Chisnall [2022] NZSC 77.

5      Department of Corrections v Gray [2021] NZHC 3558 at [23].

6      Chisnall v Chief Executive Department of Corrections [2022] NZCA 402 at [22].

made it would be relevant that the initial order was not opposed, and there has not been a full contest in relation to the relevant facts and circumstances even though both Dr Macfarlane and Mr Bell were questioned at the hearing.

Assessment

[12]      Dr Macfarlane has engaged in a comprehensive assessment of the risks associated with Mr Bell. Based on her reports and Mr Bell’s circumstances, I accept that he is at a high risk of committing further sexual offences if he were not subject to the significant controls involved in the ESO, which are similar to the controls which currently apply under his release conditions.

[13]      Dr Macfarlane summarises the position in the following way by reference to the earlier risk assessment:

Consistent with the previous assessment, Mr Bell is considered to present a high risk of committing a further relevant sexual offence while in the community. This opinion is based on a multi-method assessment, including a history of relevant sexual offending, higher scores on relevant risk assessment measures, evidence of limited treatment maintenance, and poor prognosis for future intervention efforts, and insufficient personal and professional support. In addition, whilst he has only been in the community a short period, his behaviour would suggest a deterioration has occurred, most likely related to the loss of structure, supervision, and routine imposed by a prison setting (which is where he was residing during the previous assessment).

[14]      Dr Macfarlane further addressed Mr Bell’s behaviour since he has been released and been subject to his release conditions in the following way:

Mr Bell continues to demonstrate ongoing inconsistency with regards to his acceptance of responsibility for his sexual offending, with varying reports from his probation officers. However, the bulk of the available information indicates a continued tendency to avoid responsibility for his offending. Mr Bell's behaviour so far in the community is indicative of limited overall concern for the impact of his offending on previous or potential victims. Since release, he appears to have engaged in behaviour that is, at best, dismissive of his safety plan and, at worst, could indicate offence planning. His memory and cognitive difficulties are likely to limit his ability [to] manage his risk without external support and oversight. Overall, his high risk is considered likely to endure over the medium term.

[15]      As indicated Mr Bell has most recently been sentenced to a term of imprisonment of eight years, with a minimum period of imprisonment of five years for sexual offending against seven young girls. He has an earlier conviction in 2014

for indecent assault on a girl under 12 for which he was sentenced to two years imprisonment. By itself that shows a pattern of behaviour that indicates that a level of supervision is required. And Dr Macfarlane’s report shows he continues to demonstrate the concerns that give rise for the need for an ESO.

[16]      I accept for these reasons that Mr Bell is at a high risk of committing further qualifying sexual offences if he is not subject to the ESO, and that the mandatory requirements listed in s 107IAA are present, including for the reasons identified by Dr Macfarlane.

[17]      The real issue in this case is whether the period of the ESO should be less the five years applied for, and whether it should be the two years suggested by Mr Bell.

[18]      The first concern that I have about Mr Bell’s proposal is Dr Macfarlane’s view that that since his release Mr Bell has engaged in behaviours which suggest that     Mr Bell may not fully appreciate what he needs to do to manage his risks. A two year period is only a short time in which Mr Bell’s ability to manage those risks is fully tested in the community. As Dr Macfarlane explained, any application to extend an ESO after two years would really require the steps to be commenced after only one year given what is required for such an assessment from a practical point of view.  Dr Macfarlane also gave evidence that she did not think that there could be a change in the risk demonstrated within a two year period, but that it was possible over a period of four to six years. In the circumstances a longer period of time is appropriate in order to have a meaningful period under which Mr Bell’s behaviour in the community can be assessed.

[19]      It is to be remembered that an ESO does not simply protect the community, but involves potential for Mr Bell to have access to the support that he will need to avoid reoffending. Supervision and assistance of this kind benefits Mr Bell as well as the community. He explained in evidence that he did not want to be back in prison again. In my view a longer period of time than he proposes will be required before Mr Bell can safely move in the community without support and supervision from the authorities.

[20]      For these reasons I conclude that the five year period is appropriate. I accordingly grant the extended supervision order on the standard terms and conditions. The five year period of the ESO will take effect from the end of the period of Mr Bell’s release conditions.

Cooke J

Solicitors:
Wilkinson Smith Lawyers, Whanganui for the Applicant