Department of Corrections v Fulton HC Napier CRI 2007-441-003
[2007] NZHC 1754
•24 May 2007
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2007-441-003
DEPARTMENT OF CORRECTIONS
Applicant
v
JOHN ROBERT FULTON
Respondent
Hearing: 24 May 2007
Appearances: N Graham for the applicant
Respondent in person
Judgment: 24 May 2007
(ORAL) JUDGMENT OF STEVENS J
Solicitors/Counsel:
Crown Solicitor, PO Box 609, Naper
Copy to:
J Fulton, C/- City Close Motel, 50 Munroe Street, Napier
DEPT OF CORRECTIONS V FULTON HC NAP CRI 2007-441-003 24 May 2007
[1] This is an application by the Department of Corrections (the Department) for an extended supervision order (ESO) in respect of the respondent, Mr Fulton. Such an application is made pursuant to the provisions of s 107F of the Parole Act 2002 (the Act).
[2] Mr Fulton was served with the application and attended the hearing today. At the outset, he told the Court that he did not oppose the making of an ESO, but he did oppose the request by the applicant that the ESO should be for a period of ten years. Mr Fulton proposed that a period of two years would be adequate.
Legal representation
[3] When the matter was called for hearing, it was apparent that Mr Fulton was representing himself. I asked him if he had, or required, legal representation and he said that he did not.
[4] I was conscious of the observations of Rodney Hansen J when the matter was before him for mention on 24 April 2007. On that occasion, he set the application down for hearing today at 2.15pm. Rodney Hansen J noted:
[2] The application is set down for hearing at 2.15 p.m. on 24 May. Mr Fulton wishes to rely on the report of a psychologist, Mr V Soeterik, referred to in the report of Niall Morrison of 3 January 2007. The report of Mr Soeterik is referred to in Mr Morrison’s report as 2 February 2005 but Mr Fulton believes it to be dated sometime in January 2005. That report is to be filed by the Department of Corrections and I make an order that Mr Soeterik attend the Court for the hearing as it is probable that the Crown will wish to cross-examine him.
[5] Earlier in the minute, Rodney Hansen J addressed the question of legal representation and stated:
[1] …[Mr Fulton] is disinclined to obtain legal representation, although in the course of today’s appearance I have urged him to reconsider that decision, having regard to the implications of the extended supervision order.
[6] Despite this urging, and my own inquiry as to whether legal representation was required, Mr Fulton stated that he was ready to proceed on the basis that he would act for himself on the application.
The application
[7] The Chief Executive of the Department may apply to the sentencing Court for an ESO in respect of an offender such as Mr Fulton in the circumstances provided for in s 107F of the Act. Any such application must be in the prescribed form and be accompanied by a report by a health assessor. The report must address (without limitation) the matters set out in s 107F(2).
[8] Section 107F(2) provides:
An application under this section must be in the prescribed form and be accompanied by a report by a health assessor (as defined in section 4 of the Sentencing Act 2002) that addresses (without limitation) the following matters:
(a) the nature of any likely future sexual offending by the offender, including the age and sex of 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:
(e) any other relevant factors.
[9] The application filed by the Department was accompanied by a report dated
3 January 2007 prepared by Mr Niall Morrison, a registered psychologist. It addressed the matters required by s 107F(2)(a) to (e).
[10] The application was also accompanied by a statement by Ms Katrina Eileen Casey, the General Manager of Probation and Offender Services with the Department. Her statement established inter alia that Mr Fulton was an eligible offender within the meaning of s 107C of the Act and that the offences committed by Mr Fulton were relevant offences within s 107B of the Act.
[11] Where an application is filed, the Court is required to hold a hearing at which it may take into account any evidence or information that it thinks fit for the purpose of determining the application: see s 107H(2) of the Act. With respect to such hearing, I am informed by Ms Graham, who appeared for the Department today, that the victims of Mr Fulton’s offending were notified about the hearing as required by s
107H(4) of the Act. No written submissions were presented by or on behalf of the victims at the hearing.
[12] The circumstances in which the sentencing Court may make an ESO are set out in s 107I of the Act. That section also addresses the purpose of an extended supervision order as being the protection of members of the public. Section 107I(1) provides:
The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing sexual offences against children or young persons.
[13] While the purpose of s 107I of the Act is clearly for the protection of the community, the effect from Mr Fulton’s perspective is punitive. This is apparent from two recent decisions of the Court of Appeal. First, there is the decision of Belcher v Department of Corrections [2007] 1 NZLR 507. At [49] the full Court carefully analysed the statutory scheme and found that:
…in the end, we have concluded that the imposition through the criminal justice system of significant restrictions (including detention) on offenders in response to criminal behaviour amounts to punishment and thus engages ss 25 and 26 of the [New Zealand Bill of Rights Act 1990]. We see this approach as more properly representative of our legal tradition. If the imposition of such sanctions is truly in the public interest, then justification under s 5 [of the New Zealand Bill of Rights Act] is available and, in any event, there is the ability of the legislature to override ss 25 and 26.
[14] Next, there is the case of R v Peta (2007) 22 CRNZ 925 (CA) where the scope of the potential conditions that the Parole Board may impose was discussed. At [13], Glazebrook J giving the judgment of the Court, stated:
As the imposition of ESOs through the criminal justice system involves significant restrictions (including detention) on offenders and they are imposed in response to criminal behaviour, ESOs amount to punishment: see Belcher at [49]. Given this, it is perhaps surprising that more offenders have in the past not called their own evidence with regard to s 107F(2) factors (particularly of the individualised risk factors) when they seek to challenge the imposition of an ESO.
[15] The critical question for decision is whether the Court is satisfied that, having considered the matters addressed in the health assessor’s report, the offender is likely to commit any of the relevant offences referred to in s 107B(2) on ceasing to be an eligible offender: see s 107I(2) of the Act.
[16] As noted, the Department has sought an ESO for a period of ten years. This is the maximum period permitted under the Act: see s 107I(4). Relevant to the question of the term of the order is s 107I(5) of the Act which provides:
The term of the order must be the minimum period required for the purposes of the safety of the community in light of-
(a) the level of risk posed by the offender; and
(b) the seriousness of the harm that might be caused to victims; and
(c) the likely duration of the risk.
[17] These factors clearly demonstrate the protective focus of the statutory scheme in Part 1A of the Act. This feature was emphasised in Chief Executive of the Department of Corrections v McIntosh HC CHCH CRI 2004-409-162 8 December
2004, John Hansen and Panckhurst JJ. At [27] the Court stated:
Put bluntly, orders are not to be made for the minimum period required to facilitate treatment, rather, for the minimum period required to achieve protection of vulnerable members of the community.
[18] This comment was specifically approved by the Court of Appeal in Belcher
at [108].
Health assessor’s report
[19] In support of the application, Mr Morrison, the health assessor, gave evidence in Court today. His report was produced as exhibit 1 and was advanced by the applicant in order to satisfy the requirements of s 107F(2). The report stated that Mr
Fulton was 52 years of age. He has recently been released from prison on parole after serving a sentence of seven years’ imprisonment imposed on 15 August 2000 for various sexual offences involving females under 12 years and between 12 and 16 years of age.
[20] The recommendations in the report are set out in paragraphs 37, 38 and 39 as follows:
37.Mr Fulton is assessed as at a high risk of further sexual offending and is therefore regarded as likely to commit further sexual offences against children and adolescents under the age of 16. It is recommended that the General Manager, Probation & Offender Services make application under the Parole (Extended Supervision) Amendment Act 2004 for an order for extended supervision for Mr Fulton.
38. If an order is considered appropriate by the Court, research indicates that the risk of reoffending for individuals with Mr Fulton’s assessed risk level remains stable over an extended period fo time. Mr Fulton has yet to address his sexual offending through structured treatment. This is unlikely to occur until he accepts his role in the offending. It should be noted that Mr Fulton has the presence of psychopathic personality traits and deviant sexual arousal with this combination supporting the view of him being similar to a particularly high risk sexual recidivist group. There appears to be few external sources of support that could assist him in managing his risk. Consequently he is dependant on external sources to structure his environment to mitigate risk.
39. Therefore, it is recommended that that if an Order is applied, it should be for ten years, the maximum length available under the legislation due to the likely duration of Mr Fulton’s risk.
[21] Mr Morrison elaborated upon the matters set out in the report in his evidence, including describing the methodology which he had followed in making the report and the various measures which a psychologist can use in order to determine whether an offender is at high risk of further sexual offending. His evidence first addressed the STATIC-Automated Scoring (STATIC-AS) methodology in respect of which Mr Fulton was assessed with a medium-low score. But that is not the only measure. Mr Morrison also considered the stable dynamic factors and the details of his analysis are set out in his report. These are discussed at paragraphs 24 and 25 by reference to the STABLE-2000 scale.
[22] Mr Morrison also considered various risk factors not directly assessed by either the STATIC-AS methodology or the STABLE-2000 scale. These were
measured (in 2004) against the Psychopathy Checklist: Screening Version
(PCL:SV).
[23] Mr Morrison’s conclusion on these three measures is set out at paragraph 28 of his report as follows:
In summary, assessment of Mr Fulton’s risk of further serious sexual reoffending using information on noted clinical risk factors, the STATIC- AS, items from the STABLE-2000, and assessment on the PCL:SV finds support from these multiple sources that there is a high risk of Mr Fulton committing a further relevant sexual offence while in the community.
[24] Mr Morrison noted at paragraphs 24 and 25 that there had been a refusal by Mr Fulton during the period in which he was in prison to cooperate with regard to assessments and treatment which it had been suggested would assist him in his rehabilitation. Mr Morrison was cross-examined about these aspects by Mr Fulton. However, it is not necessary for me to make any finding on these matters for the purposes of determining the issues arising out of this hearing. It is to be observed, however, that a Court is entitled to take into account the fact that a person refused to cooperate in the preparation of the health assessor’s report and the reasons for it: see Chief Executive of the Department of Corrections v Rimene HC WN CRI 2004-485-174 8 March 2005, Gendall J. This approach is consistent with the observation of the Court of Appeal in Belcher at [98] and [99] that the subject of an application for an ESO does not have a right of veto over the psychologist who is to prepare the report. Lest it be considered relevant to any further consideration of the matter, no good reason was advanced by Mr Fulton during the hearing for his not cooperating with Mr Morrison in relation to the preparation of the health assessor’s report.
[25] Finally, Mr Morrison outlined at paragraphs 29 to 33 of his report the various risk factors relevant to s 107F(2) of the Act. These are the factors which the Court is required to take into account in determining whether an ESO should be made.
[26] On the particular issue before the Court as to whether an order for up to ten years should be made, Mr Morrison was firmly of the view that a ten year period was required not only because of the research that he referred to, but also because of the
various high risk factors of further sexual offending that applied to Mr Fulton. In his professional opinion, an order of the length of ten years was appropriate in order to protect members of the community (particularly children and young persons) from the risk of further sexual offending by Mr Fulton. In short, Mr Morrison concluded that, on the basis of his report and evidence in Court, Mr Fulton posed a real and ongoing risk of committing sexual offences against children or young persons.
[27] On the question of period of an ESO, I must also take into account the evidence of Mr Morrison that hitherto there has been, for whatever reason, a marked reluctance to address these matters by Mr Fulton personally. This is on the basis that there is a high degree of lack of self-awareness and self-insight: see notes of evidence page 5, at lines 33-35.
Evidence of Mr Soeterik
[28] Mr Fulton then called Mr V F W Soeterik, a registered clinical psychologist, to give evidence. He appeared on a summons issued by Mr Fulton. Mr Soeterik had prepared a report on Mr Fulton in 2005, but he was not asked by Mr Fulton to produce this in Court. Rather, his evidence was directed to the issue before me, namely, whether the extended supervision order should be for more than two years.
[29] Mr Soeterik was asked directly about his professional opinion regarding the length of an ESO. He indicated in summary that, if Mr Fulton were prepared to undergo treatment over a period of three to five years then it may be that he would be in a position where he could demonstrate to the Court that there was no longer any need for an ESO. Mr Soeterik was reluctant to put a figure on any period for an ESO. He added:
I believe if Mr Fulton as an individual does not use that opportunity however long that timeframe is to modify the risks then I think even after 10 years he may still be in the same risk of re-offending no matter how strict his supervision is but we cannot extend past 10 years because of the statute itself, so my answer in a sense is contingent on what does Mr Fulton propose to do within whatever order you impose him to reduce the risk factors that have been identified so that he can keep himself and the community safe.
…
Court: Your comment about time of any order is really contingent upon Mr Fulton himself taking pro-active steps to get treatment ?… absolutely Court: And you will appreciate if an order were made for 10 years and Mr Fulton in fact followed your recommendation of 3 – 5 year intervention and commitment to treatment then it would be open for him under the legislation to apply for the order to be reduced ?… absolutely. I have traversed this particular question before and my observation is that to do that is both costly and expensive to the applicant. There are not easy challenges to mount, but certainly in principle it is possible.
[30] I have been assisted by Mr Soeterik’s evidence to the extent that, unless Mr Fulton is prepared to take personal responsibility for change and accept the need for professional treatment and actually undertakes such treatment, then the likelihood would be that he would continue to pose a serious risk to the community of committing sexual offences against children or young persons. Mr Soeterik confirmed that it was really a prerequisite of being released from any supervision order that there would need to be significant changes and commitment to treatment by Mr Fulton.
Statement by Mr Fulton
[31] Mr Fulton himself then addressed the Court. He said he was a different man now that he had completed his sentence of imprisonment. He had an awareness of the effects of his offending on his daughter. He was ashamed of what he had done and would not wish what occurred on any girl.
[32] He said that he did not want to offend again against any child. He did not want them to go through what his daughter had been through. He said that he would be prepared to seek help, but placed a limitation on those from whom he would accept it and indicated that he would not be willing to seek help from Mr Morrison or one of Mr Morrison’s colleagues, a Mr Hampton.
[33] He confirmed he was no longer in a relationship and believed that this would lower his risk of re-offending. When the hearing commenced, he had suggested two years would be sufficient. In short, he invited the Court to impose a period of supervision of less than ten years.
[34] Before concluding, I refer briefly to the comments of the Court of Appeal in
Peta at [56] and [57]:
An ESO has the potential to place major restrictions on the freedom of movement and freedom of association of an offender: see at [12] above. This makes it even more important than in the ordinary course of cases for a Judge, when imposing an ESO, to explain clearly to the offender why such an order is being made. This entails more than a mere reference to the health assessor’s report. More importantly, however, a health assessor’s report should not merely be rubber stamped…
A Judge is, of course, perfectly entitled to accept the evidence of a health assessor, particularly in a case where no contrary evidence has been presented. It must, however, be explained why the evidence was accepted and why that leads, on an individualised assessment, to the conclusion that the statutory test for the imposition of an ESO is met. In a case where there is a history of serious sexual offending, where no countervailing factors are identified, where the [Automated Sexual Recidivism Scale] and [Sex Offender Needs Assessment Rating] assessments and any individualised risk factors suggest a high risk of re-offending against children, the Judge’s reasons can be relatively brief. …
Disposal
[35] Having carefully considered the matters in Mr Morrison’s report and in his evidence in Court today, as well as the evidence of Mr Soeterik, I conclude that Mr Fulton is likely to commit relevant offences on ceasing to be subject to any release conditions or on the sentence expiry date. I accept the views expressed by Mr Morrison in the report and in his evidence that Mr Fulton does pose a real and ongoing risk of committing sexual offences against children and young persons, and that the making of an ESO is necessary to protect members of the community from him.
[36] In terms of the length of any such order, s 107I(4) enables the Court to make an order not exceeding ten years. I consider that, based on the evidence contained in the health assessor’s report and the oral evidence given by Mr Morrison and Mr Soeterik in Court today, that an order should be made for an ESO for ten years. I base this decision upon the risks posed by Mr Fulton to children and young persons in the community, the seriousness of the harm that might be caused to such persons as potential victims and the likely duration of the risks. These are the statutory
factors referred to in s 107I(5) of the Act. The evidence of Mr Morrison and Mr
Soeterik provides an ample factual basis for my findings.
[37] This is not to say that there may not in the future be some opportunity for Mr Fulton to make changes and in due course make an application for the ESO to be cancelled. There is provision in the Act, for example in s 107M, to allow the sentencing Court to exercise a discretion to cancel any supervision order. This is of course dependent on whether the offender subject to the order is still likely to commit a relevant offence.
[38] Accordingly, if Mr Fulton is prepared to undertake treatment and make the types of changes referred to in evidence by Mr Soeterik, then it would be open to him to apply to the Court for cancellation of the ESO under s 107M of the Act. But that is really a matter for him. It is clearly in his own hands, with the appropriate professional help, to make the necessary changes.
Start date for the extended supervision order
[39] Ms Graham, for the applicant, advised the Court that Mr Fulton had been released on parole and was, in relation to such release, subject to not only the standard conditions in the Parole Act, but also some special conditions. These conditions continue in force until 8 November 2007. Ms Graham pointed out that, if the extended supervision order were to be made effective from today, then such special conditions imposed by the Parole Board would by force of law be rendered inoperative. Accordingly, she requested that the start date for the ESO be
8 November 2007.
[40] I consider that it is not appropriate that the special conditions imposed by the Parole Board be effected in any way and the Court would not wish to see that occur. Accordingly, I direct that the start date for the ESO made herein shall be
8 November 2007, or if the Parole Board imposes special conditions under s 107K, on the date that they do so, whichever is the earlier.
[41] The Department did not seek any costs and no order is made.
Stevens J
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