Department of Corrections v Brady

[2022] NZHC 2179

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2022-483-4

[2022] NZHC 2179

BETWEEN

THE DEPARTMENT OF CORRECTIONS

Applicant

AND

BEAUDINE KAREPE KARIATANA BRADY

Respondent

Hearing:

26 August 2022

Appearances:

J J Harvey for the Applicant

D M Goodlet for the Respondent

Judgment:

30 August 2022

JUDGMENT OF COOKE J

[1]    By application dated 14 March 2022 the Department applies for an Extended Supervision Order (ESO) under s 107F of the Parole Act 2002 (the Act). The application is supported by a detailed psychological report from Dr Justine Croxen dated 15 December 2021. The application seeks an ESO for a period of five years.

[2]    The application is not opposed by Mr Brady. Ms Goodlet filed a memorandum explaining the steps that have been taken by Mr Brady, including by taking independent psychological advice from Dr Clare Brindley.  Counsel  advises  that  Mr Brady understands the purposes and principles behind an ESO and the opportunity of support which such an order can provide him, and for that reason he does not oppose the making of the order.

THE DEPARTMENT OF CORRECTIONS v BRADY [2022] NZHC 2179 [30 August 2022]

[3]    The applications were called on Friday 26 August where I heard submissions from Mr Harvey and Ms Goodlet, following which I decided that the applications should be granted in their terms. These are my reasons.

The requirements

[4]    Section 107I of the Act provides that the sentencing court may make an ESO. In the case of Mr Brady 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 Brady will in future commit a relevant sexual offence. Under s 107IAA specific matters are identified which the Court must be satisfied of. 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.

[5]    In the present case the order is not opposed by Mr Brady. He agrees, after taking advice from an independent psychologist and counsel, that such an order will help in providing him with the assistance that he will need to avoid re-offending.

[6]    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.

[7]    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 1990.1 Leave to appeal to the Supreme Court has been granted.2 I have suggested that Chisnall may give rise to a need for some recalibration of the approach taken to the imposition of such orders.3 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 of

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

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

3      Department of Corrections v Gray [2021] NZHC 3558.

complaint an interpretation and application as is available within the terms of the legislation.4

[8]    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 level of the risk, and need to protect 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 will impose measures for their ultimate benefit. Mr Brady does not wish to re-offend. He needs assistance to help him in that objective. 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.

[9]    I also consider that it is of significance that Mr Brady 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 made it would be relevant that the initial order was not opposed, and there has been no contest in relation to the relevant facts and circumstances.

Assessment

[10]   Dr Croxen has provided a comprehensive assessment of the risks associated with Mr Brady in her report. Based on that report, and Mr Brady’s circumstances, I accept that he is at a high risk of committing further serious sexual offences on release if he were not subject to the significant controls involved in the ESO.

[11]   Mr Brady received his first conviction for sexual violence when he was aged 17 years, although he had convictions for other offending before that time. He received a nine year sentence of imprisonment. He was released on parole in September 2007. Within three weeks of being released he committed a further serious violent sexual offence against a male stranger. He was sentenced to a 13 year sentence of imprisonment. He has since committed violence offences while in prison.

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

[12]   Dr Croxen has applied a number of risk assessment tools. Some of those assess him at a high risk, and some at a medium or moderate risk. Dr Croxen considers that overall he is at a moderate, bordering on high risk of committing further violent offending within the community, but if robust risk mitigation factors were not put in place on his release into the community it was probable that his dynamic risk would elevate to high. She is also of the opinion that he presents as a high risk of committing further relevant sexual offences.

[13]   Mr Brady has fully participated in rehabilitation programmes while in prison. Dr Croxen reports that he has been open and willing to engage in interventions to effect positive changes. As I said at the hearing, he is to be commended for the efforts he has made. But as Dr Croxen emphasises he has been incarcerated since he was 17 years old and accordingly has, developmentally, spent his entire adult life in prison. She rightly observes that he has a high level of reintegrative need. He has inadequate community support, a lack of employment, a lack of confirmed accommodation and an untested ability to cope with stress. The fact that he offended so quickly with an offence of sexual violence upon his previous release is very telling.

[14]   I accept for these reasons that Mr Brady is at a very high risk of committing further qualifying sexual offences on release from prison 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 Croxen.

[15]   For these reasons it is appropriate that an ESO be put in place on standard conditions for a period of five years from his release date. Leave is reserved to address any other matters that I may have overlooked.

Cooke J

Solicitors:
Wilkinson Smith Lawyers, Whanganui for the Applicant