Department of Corrections v Gate

[2016] NZHC 2946

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-000005 [2016] NZHC 2946

DEPARTMENT OF CORRECTIONS

v

LOUIS ROTOPARERA GATE

Hearing:

14 September 2016

Memoranda 14 September 2016, 5 October 2016 and 7 October
2016, Teleconference 2 December 2016

Appearances:

J Tarrant for the Department
D J Allan for the Defendant

Judgment:

7 December 2016

JUDGMENT OF HINTON J

This judgment was delivered by me on 7 December 2016 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………

Registrar/Deputy Registrar

Counsel/Solicitors:

J Tarrant, Almao Douch, Hamilton

David Allan, Barrister, Hamilton

DEPARTMENT OF CORRECTIONS v GATE [2016] NZHC 2946 [7 December 2016]

[1]      The Chief Executive of the Department of Corrections has applied for an extended supervision order (ESO) against Mr Gate under s 107F of the Parole Act

2002.

[2]      This is an unusual case.

[3]      The primary focus at the hearing and in submissions was on future risk.

[4]      At the conclusion of the hearing, Mr Gate consented to the making of an ESO, in part because he believed it would help him transition from a mental health facility to the community.  He accepted, through his counsel, Mr Allan, after cross- examination of Mr Els, the health assessor called by the applicant, that the criteria were satisfied for the making of an order.

[5]      Mr Allan advised in his memorandum of 12 September 2016, that Dr Street, a consultant forensic psychologist instructed for Mr Gate, considers (after reviewing all  material,  speaking  to  the  treatment  team  and  interviewing  Mr  Gate),  that Mr Gate’s mental health is fragile and the combination of risk of future violent and/or sexual offending meant that, in Mr Gate’s case, there would be a therapeutic benefit from having an ESO.

[6]      I nonetheless had to be satisfied that such an order was appropriate.  This led me to raise with counsel by Minute after the hearing, whether the statutory requirement  that  Mr  Gate has  or has  had  a pervasive  pattern of serious  sexual offending, had been met.  This in turn has led to Mr Gate’s withdrawing his consent to the making of an ESO.

Background

[7]      Mr Gate is 42 years old.

[8]      He has a lengthy criminal history.

[9]      He has 14 previous convictions for violent offending, from 1991 to 2004. They include possession of a knife in a public space; fighting in a public space;

common assault; assault of a prison officer; male assaults female; assault with intent to injure; aggravated robbery; and wounding with intent to cause grievous bodily harm.

[10]     Mr Gate has only one conviction for sexual offending, which is for sexual violation, for which he was imprisoned for six years in 2004.

[11]     Mr Gate has not been out of the prison or mental health system since 2004. As I understand it, he is now an in-patient at the Tamahere Hospital and Healing Centre (THHC).

[12]     There were numerous violent incidents throughout 2004 and 2005, while in prison.

[13]     Mr Gate’s mental health and related behaviour deteriorated to such an extent in prison that it necessitated long stays, either in a secure rehabilitation unit or at the Mason Clinic.

[14]     Once  Mr  Gate’s  mental  health  stabilised,  he  was  then  transferred  to  the THHC in July 2011, pursuant to s 30 of the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[15]     He will remain an in-patient until there is certainty that he can be treated on an out-patient basis.

[16]     While Mr Gate’s behaviour under care and medication has improved, he has

recently been involved in sexual ideation over three staff members.

[17]     This application is supported by two health assessors’ reports.  The first is a report of Ms Tanya Waterton, Registered Psychologist.   She was not available for cross-examination.  The second report is by Mr Stephen Els, Clinical Psychologist, dated 9 August 2016.  Mr Els appeared for cross-examination.

The relevant provisions for making an ESO

[18]     The purpose of an ESO is to protect members of the community from those who, following receipt of a determinative sentence, pose a real and ongoing risk of committing serious sexual offences or violent offences.1     An ESO can result in severe restrictions being placed on many aspects of an offender’s life, including residence, employment, association and travel, for up to 10 years.2

[19]     There is no dispute that Mr Gate is an “eligible offender” within the meaning set out in s 107C of the Act.   He was subject to a determinate sentence of imprisonment which was for a “relevant sexual offence”, as defined in s 107B(2) of the Act, namely that of sexual violation by unlawful sexual connection (and wounding with intent to cause grievous bodily harm).  Mr Gate remained subject to that sentence at the time of filing the ESO application.

[20]     Section 107I gives a sentencing court the power to make an ESO if the court is satisfied, having considered the matters addressed in a health assessor’s report, that:

(a)      the offender has, or has had, a pervasive pattern of serious sexual or violent offending (s 107I(2)(a)); and

(b)there is a high risk that he will in future commit a relevant sexual offence; and/or there is a very high risk that he will in future commit a relevant violent offence (s 107I(2)(b)).   (For risk of future sexual offending,  the  court  must  be  satisfied  of  the  factors  set  out  in  s

107IAA(1), and for risk of future violent offending, of the factors set out in s 107IAA(2).)

[21]     Although the application is based on both sexual and violent offending, the applicant accepts that I cannot make an ESO in this case on the basis of violent

offending.  There is a clear pervasive pattern of violent offending, but the evidence

1      Parole Act 2002, s 107I.

2      Parole Act 2002, s 15(3).

refers to a “high” risk of future violent offending, whereas s 107I requires a “very”

high risk. The applicant accepts the evidence falls short in this regard. [22]  I therefore focus solely on sexual offending.

[23]     The s 107IAA(1) factors, about which a court must be satisfied to determine there is a high risk that an eligible offender will commit a relevant sexual offence are, that the offender (using the “numbering” in that subsection):

(a)       displays an intense drive, desire, or urge to commit a relevant sexual offence; and

(b)      has a predilection or proclivity for serious sexual offending; and

(c)       has limited self-regulatory capacity; and

(d)      displays either or both of the following:

(i)  a  lack  of  acceptance  of  responsibility  or  remorse  for  past offending;

(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.

[24]     The court is required to consider a health assessor’s report, but, as the Court of Appeal has stated, the making of an ESO is a judicial decision, not that of the health assessor.3

A pervasive pattern of serious sexual offending?

[25]     Under the first leg of s 107I, I have to be satisfied that Mr Gate has had a pervasive pattern of serious sexual offending.

[26]     Mr Gate has only one conviction for sexual offending.

[27]     The conviction  alone would  clearly not  constitute a pervasive pattern  of serious sexual offending.

[28]     “Serious sexual offending” is not defined in the Act.  However, it is now clear that the matters to be considered are not limited to offences specified as relevant

3      R v Peta [2007] 2 NZLR 627 (CA) at [7].

under s 107B(2).4    The court can take into account past sexual conduct, including unproven allegations and conduct that does not actually constitute an offence, such as that disclosed in a health assessor’s report.5

[29]     Mr Els evidenced past sexual conduct in his report, as follows:

10.      Prior to the relevant sexual offending, on the same day … Mr Gate initially peeped at a woman showering and left when he was disturbed by someone.  Three hours later, Mr Gate was on his way to buy cannabis when he spotted the second victim sunbathing.   He acknowledged experiencing sexual arousal at the time, but did not act upon it.   He then smoked the cannabis, returned later, and committed a contact sex offence by biting the sunbathing victim on her genitals.  This writer holds the view that Mr Gate appears to have experienced a level of decompensation, evidenced in part by the auditory hallucinations he experienced, that negatively impacted on his ability to curb his sexual arousal.   An interplay between sexual deviancy, substance abuse, and poor mental health is therefore evidenced.  Mr Gate, during feedback of this report, noted that his perspective is that the offences took place two weeks apart.

11.       A previous  Psychologists’ Office  report  [in  2004]  also  points  to Mr Gate engaging in inappropriate sexual behaviour prior to the index sexual offences.     This  included  making  an  inappropriate  suggestion  to  his sister-in-law’s under-aged children, engaging in masturbation in prison or police cells, making sexually suggestive comments to female prison officers, exposing his penis to a female police officer, stripping naked and engaging in sexually suggestive behaviour in prison court yards.

[30]     Mr Els also referred to Mr Gate having disclosed in April 2015, that he thought three female staff members were sexually interested in him, with Mr Gate masturbating to this belief over a period of two years.

[31]     Mr Gate had also revealed that he, at times, had “ideas of reference” in relation to female television presenters, who, from his perspective, were communicating through the television that they found him attractive.

[32]     Mr Gate also acknowledged that at the time of the interview leading up to the

August 2016 report, he had at times been inappropriate around women and that he was working on this.

4      Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [39]-[45].

5 At [42].

[33]     I accept I can take all of this conduct into account.   However, although I consider it demonstrates a pervasive pattern of sexual offending, I do not consider that the index offending, coupled with the range of past sexual conduct (which is all at the lower end of the scale), constitutes a pervasive pattern of “serious” sexual offending.  I have to remind myself that making an ESO is a very significant step. The level of offending required has not been met here.

Conclusion

[34]     I find that Mr Gate neither has, nor has had, a pervasive pattern of serious sexual offending.   Section 107I(2)(a) is not met.   There is no need to go on to consider the second requirement that has to be met before an ESO could be made, namely, whether there is a high risk that Mr Gate will in future commit a relevant sexual offence in terms of s 107I(2)(b) and the compulsory criteria of s 107IAA(1).

[35]     I therefore decline to make an extended supervision order.

----------------------------------------------------- Hinton  J