Department of Corrections v McCord
[2017] NZHC 744
•13 April 2017
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S
203 OF THE CRIMINAL PROCEDURE ACT 2011.
NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-206 [2017] NZHC 744
BETWEEN DEPARTMENT OF CORRECTIONS
Applicant
AND
EUGENE HAPI MCCORD Respondent
Hearing: 9 March 2017 Appearances:
Z R Hamill for Applicant
A F McLean for RespondentJudgment:
13 April 2017
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 13 April 2017 at 10am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker, Auckland
Public Defence Service, Auckland
DEPARTMENT OF CORRECTIONS v MCCORD [2017] NZHC 744 [13 April 2017]
Introduction
[1] The Chief Executive of the Department of Corrections (the Chief Executive) applies for an extended supervision order (ESO) in respect of the respondent, Eugene Hapi McCord (Mr McCord), for a term of 10 years to commence on the date of the making of an ESO, and to run concurrently with his existing ESO which expires on
29 March 2018. The Chief Executive also seeks an order requiring the Parole Board to impose an intensive monitoring condition on Mr McCord for the first 12 months of the ESO if granted.
[2] Mr McCord is currently subject to an ESO imposed on 9 June 2010 in the Auckland District Court. During the currency of that two year term, Mr McCord committed offences which resulted in him being sentenced to imprisonment. On 6
December 2013 he was sentenced in the High Court at Auckland to three years, three months’ imprisonment in respect of two charges of indecent assault committed by him on 5 February 2013. During the period that Mr McCord was in prison the two year ESO term was suspended and the current end date of that initial ESO is now 29
March 2018.
[3] The Chief Executive now applies to the Court for a further ESO to be imposed to commence on the date of the making of an ESO for a term of 10 years from that date.
Background and history of Mr McCord’s criminal offending
[4] Aged 35, Mr McCord has an extensive criminal history. He has accumulated
157 convictions. His offending started in October 1998 on charges of offensive behaviour and male assaults female, when he was 17 years old. Since then he has been convicted of a wide range of offending including dishonesty offences (shoplifting, theft, theft of motor vehicles and burglary), breaching court release conditions, failing to answer bail, driving offences, disorderly behaviour offences and resisting Police. More significantly however, he also has a number of convictions for sexual assaults on females and for violent offending.
[5] When aged 24 he was sentenced to three and a half years’ imprisonment for a series of offences that took place on 14 August 2005, the victim being a 15 year old girl with whom he had previously been in a relationship. This offending included him kidnapping the victim, assaulting her, and wounding her with intent to injure her. He was also convicted of having sexual intercourse with the victim when she was aged under 16 between May and 14 August 2005.
[6] In 2010 he was convicted of assault with intent to injure and threatening to kill his partner who was pregnant at the time. He was sentenced to two years, three months’ imprisonment.
[7] On 9 June 2010 the District Court at Auckland made an ESO for a term of two years.1
[8] Following his release from prison and while subject to that ESO he offended again. On 5 February 2013 he visited an elderly woman who lived in a neighbouring property to where he was living. He sat beside her and placed his hands on her genitals and made an inappropriate and suggestive comment. He left the victim’s home when she told him go. He was convicted of two charges of indecent assault upon her, and sentenced to three years, three months’ imprisonment.
[9] In addition to the sexual offending, Mr McCord has a history of violent offending including the use of weapons and assaults.
[10] Mr McCord has a history of substance abuse which began in his early teens. His substance abuse has included the use of cannabis, alcohol, and solvents as well as heroin and morphine tablets, and he has committed offences whilst intoxicated including breaching his release conditions.
Mr McCord’s interview by the health assessor – Ms Tolond
[11] For the purposes of preparing and presenting her report2, the health assessor,
1 Although the Judgment of Judge M-E Sharp giving reasons for making the ESO is dated 23 June
2010, the date of the sealed ESO is 9 June 2010, and Judge Sharp explains in her 23 June Judgment that she had earlier granted the ESO: Chief Executive of the Department of Corrections v McCord DC Auckland CRI-2008-085-006675, 23 June 2010.
Ms Tolond arranged to meet and interview Mr McCord in the Special Need Unit of Auckland Regional Prison where he was held at the time. At the first scheduled interview on 3 February 2016, when she attempted to explain to him the purpose and nature of the interview it became apparent to her that he did not understand the purpose of the interview. Ms Tolond ascertained that Mr McCord had not received any legal advice in connection with the ESO application process and had misunderstood the documentation that had been provided to him by the Department of Corrections. Ms Tolond noted in her report that Mr McCord was unable to process the information presented to him and displayed distorted and illogical thinking. Ms Tolond became concerned at whether Mr McCord was able to give his informed consent to the interview proceeding, and she terminated the interview to allow arrangements to be made for him to obtain legal advice.
[12] As Mr McCord was unable to make an application for a grant of legal aid without being able to specify a Court hearing date, arrangements were made for him to speak to a barrister who customarily assists prisoners with appearances before the Parole Board. Although a meeting was arranged, the barrister also expressed concern regarding Mr McCord’s ability to give informed consent. In these circumstances, Ms Tolond then decided to proceed and make an assessment of Mr McCord’s risk of reoffending based on file information held by the Department of Corrections, together with information gathered from Departmental staff. Ms Tolond noted in her report that as Mr McCord’s version of relevant events could not be ascertained directly from him, the resulting lack of interview data could compromise the quality of the assessment.
[13] Pursuant to s 107H(3) of the Parole Act 2002 (the Act), the Court is entitled to take into account the fact that an offender has refused to co-operate with the preparation of a health assessor’s report, but must also take into account any reasons the offender gives for refusal to co-operate with the preparation of the report. Here, Mr McCord’s negative response to Ms Tolond’s request for an interview appears to have been based on his apparent misunderstanding of certain documents provided to him by the Department of Corrections regarding the ESO application process. In the
circumstances, I do not consider that it is appropriate to draw any inference adverse
2 A health assessor’s report is required by s 107F(2).
to Mr McCord by reason of his failure to co-operate. The circumstances and reasons why he did not agree to the interview proceeding are sufficiently explained and it would be quite inappropriate for any negative view of his conduct to detract from his opposition to the making of an ESO, or be viewed as providing support for the applicant. I see the whole issue as neutral in terms of having any effect on the decision I am to make.
[14] I have had regard to that history as regards the preparation of Ms Tolond’s report, and have consequently approached her report with the knowledge that although Mr McCord was not available to her for interview, she has based her report and her opinions on information available to her on the Department’s file, including such documents as Judges’ sentencing notes and Mr McCord’s Criminal History. Having regard to the nature of the information referred to by Ms Tolond for the purposes of preparing her report, I consider that it is appropriate that it be treated as a reliable basis for her report.
[15] I also note that Mr McCord’s counsel, Ms McLean subsequently engaged a psychiatrist, Dr Caleb Armstrong, to provide a report with a view to it being used to support Mr McCord’s opposition to the making of an ESO order. Dr Armstrong’s report was filed with the Court and is before me, although he was not called as a witness at the hearing of this application. In his report, Dr Armstong concluded that Mr McCord presents a high risk of reoffending, and Ms McLean has primarily relied on the report as regards his observations regarding Mr McCord’s mental health, and his need for treatment, which she says is likely to reduce the risk of him reoffending.
Submissions for the Respondent
[16] Ms McLean, first says that Mr McCord remains opposed to the making of a further ESO. However, while noting that the Court must be satisfied of the statutory prerequisites before making an ESO, she accepts that the Court is likely to find that Mr McCord has had a pervasive pattern of serious sexual offending, and that he poses a high risk of committing a further relevant sexual offence such that it is appropriate to make an ESO. Ms McLean says that Mr McCord seeks as short a term as is consistent with the safety of the community having regard to his level of
risk, the seriousness of the harm that might be caused and the likely duration of the risk.
[17] Ms McLean accepts that the High Court is the sentencing Court; Mr McCord is an eligible offender; and that he has convictions for relevant sexual and violent offences.
[18] Ms McLean also accepts that the Court is likely to find Mr McCord has had a pervasive pattern of serious sexual offending and poses a high risk of committing a further relevant sexual offence and that it is appropriate to make an ESO order. However, Ms Mclean submits that Mr McCord may not meet the statutory criteria in terms of the risk of further violent offending.
[19] Finally, Ms McLean submits that the real issue before the Court will be the appropriate length of any further ESO which she emphasises must be the minimum period required for the purposes of protecting the community.
[20] Notwithstanding the position taken by Ms McLean for Mr McCord, the Court must consider and determine the application in accordance with each of the relevant provisions of Part 1A of the Act.
The purpose and prerequisites of an ESO
[21] Section 107I(1) of the Act provides that the purpose of an ESO is to protect members of the community from those who, following the imposition of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violence offences. The Chief Executive submits that Mr McCord poses a real and ongoing risk of committing both sexual and violent offences.
[22] Pursuant to s 107I the jurisdiction to make an ESO is conferred on a “sentencing Court”. “Sentencing court” in relation to an offender is defined in the Act as meaning the High Court unless every relevant offence for which the offender was most recently subject to a sentence of imprisonment was imposed by a District Court. Mr McCord’s most recent sentence was the sentence of imprisonment imposed upon him by the High Court on 6 December 2013 following his conviction
on two counts of indecent assault. Accordingly I am satisfied that this Court is the sentencing Court with jurisdiction to make an ESO.
Eligible offender
[23] Pursuant to s 107F(1) of the Act the Chief Executive may apply to the sentencing Court to make an ESO in respect of an “eligible offender”. Section 107C of the Act relevantly defines the term “eligible offender” as meaning an offender who is not subject to an indeterminate sentence, but is a person who has been sentenced to imprisonment for a relevant offence and has not ceased since his or her latest conviction for a relevant offence to be subject to an extended supervision order.
[24] Here the Chief Executive refers to the history set out above including the initial two year ESO imposed on Mr McCord in the Auckland District Court on 9
June 2010, and the three year, three month term of imprisonment to which he was sentenced by the High Court at Auckland on 6 December 2013, on two charges of indecent assault being relevant offences pursuant to s 107B(2)(l) of the Act. Because of the delay of the initial ESO coming into force and Mr McCord’s intervening periods of imprisonment, the initial ESO made in the District Court on 9 June 2010 was current and Mr McCord was subject to it at the time the application was made and is thereby an eligible offender.
[25] The application is accompanied by a health assessor’s report as required by s
107F(2). The report of the health assessor, Ms Tolond, addresses each of the issues prescribed by s 107F(2A).
[26] Having satisfied the statutory requirements of eligibility and complied with the statutory requirements as to the time of making an application and the filing of a health assessor’s report, before a sentencing Court may make an ESO the Court must be satisfied, following consideration of the matters addressed in the health assessor’s report that the offender has or has had a pervasive pattern of serious sexual or violent offending. In respect of this prerequisite, the Chief Executive refers to Mr McCord’s criminal history as it appears from the Department of Corrections’ criminal and traffic conviction history 12 page report and the contents of the health assessor, Ms
Tolond’s report, as regards Mr McCord’s pattern of previous offending. In a summary of Mr McCord’s offending, Ms Tolond wrote:
Mr McCord’s criminal conviction history is extensive with 157 offences in total over 50 sentencing appearances, indicating versatile and recidivist offending from a young age despite imposed sanctions. While his offence trajectory indicated an evident propensity for drugs and antisocial, dishonesty and non-compliance related offending, the including of 22 violent offences and five sexual offences signified high and escalating risk of interpersonal harm to the community. Of noteworthy concern is Mr McCord’s resistance to imposed sanctions with 31 offences for non compliance related offending (including three breaches of extended supervision). Mr McCord’s criminal conviction history revealed a recidivist pattern of offending which has continued unabated with escalating severity whilst on sentence and shortly after release from prison.
[27] Ms Tolond also noted, in the context of Mr McCord developing a pattern of serious sexual or violent offending, that by the age of 20 he had accumulated a total of 50 offences which included seven violent offences and his first sexual offence committed at age 17 years. This early onset of offending of a serious nature is explained by Ms Tolond as an important factor in the assessment of Mr McCord’s overall risk profile.
[28] In her report Ms Tolond notes that Mr McCord’s convictions for relevant sex offences relate to four sexual offences in respect of three separate female victims, two of whom were over 16 years of age and one under 15 years. His first sexual offence in 1999 was one which involved him obscenely exposing himself in public which is not a relevant sexual offence listed within s 107B of the Act.
Pattern of serious sexual offending
[29] Mr McCord’s first relevant sexual offence when he was aged 22 was an indecent assault on an adult female, whom he claimed was an ex partner. The details of this offending were not available to Ms Tolond and accordingly only the essential details were noted.
[30] Mr McCord’s second relevant sexual offence occurred some 18 months later when he was aged 23. He was convicted of sexual connection with a young person aged between 12 and 16 years. The victim was a 15 year old young woman with whom he had been in a relationship.
[31] The third relevant sexual offence for which Mr McCord received a one year term of imprisonment arose from his engaging in sexual intercourse with a young woman under the age of 16. Ms Tolond notes that Mr McCord had explained that he presumed the victim was of consenting age because of her employment in the sex industry. However, it was determined that he had not taken reasonable steps to ascertain her age.
[32] Mr McCord was also convicted of serious violent offending against the same victim, which included kidnapping, assaulting and wounding her. Ms Tolond in her report noted that Mr McCord’s offending, which commenced on 11 August 2005, began with him punching the 15 year old victim in the head whilst travelling with her and several other young people in a vehicle. Then on 14 August 2005 Mr McCord dragged the same victim out of the vehicle and threw her down a bank. He then followed her down the bank and assaulted her further. These assaults resulted in wounds to the victim’s head. Later that day, after Mr McCord and the victim had travelled to a property at Kawakawa, the victim fled to a neighbouring house and locked herself in the bathroom. Mr McCord located the victim, forcibly removed her from the bathroom and detained her in a bedroom of another house, where she was when the Police arrived. Ms Tolond particularly noted that the records of the sexual and violent offending referred to and emphasised Mr McCord’s dominance and control over the victim.
[33] As regards Mr McCord’s most recent convictions for indecent assault on a female for which he was sentenced in the High Court on 6 December 2013, Ms Tolond noted that this offending occurred in relation to a 77 year old victim residing in a neighbouring property to where Mr McCord was residing. Mr McCord was at the time subject to an extended supervision order. Mr McCord entered the victim’s own home and in the course of his offending touched her vagina over her clothing while commenting that he wished to have sex with her. When the victim pushed his hand away Mr McCord attempted to touch the victim’s vagina again, to which the victim responded by pushing his hand away again and telling him to leave her home.
[34] In addition to the sexual offences for which he was convicted, Ms Tolond has noted information on the Department of Corrections’ file recording Mr McCord’s
inappropriate sexual behaviour towards women whilst he has been in prison. In
2007 Mr McCord was inappropriately engaging in targeted sexualised talk with a female psychologist during the course of an assessment interview. In 2013 concerns were raised by Community Probation in relation to Mr McCord’s overt sexualised behaviour towards a female Probation Officer including writing a letter propositioning her.
Pattern of violent offending
[35] In relation to Mr McCord’s history of violent offending, Ms Tolond’s report states:
As discussed, Mr McCord’s risk of harm is further exacerbated by the inclusion of significant interpersonal violence in his history. Although only one (Wounds - Intent to Injure [Manually]) of the 22 violent offences is relevant under s 107B of the Parole Act, Mr McCord’s violent behaviour is considered extensive and in some cases excessive, and has included the possession and use of weapons. According to Departmental and file information Mr McCord is typically violent against women, specifically relationship partners, although his criminal conviction history evidenced general reactive and instrumental violence against adult males as well.
[36] The health assessor in her report has referred to and reviewed Mr McCord’s violent offending. His most recent violent offending in 2010, which involved two charges of assault with intent to injure, threatening to kill/grievous bodily harm and injures with intent to injure is conduct which, while not considered relevant under the legislation, nevertheless highlights the severity and extent of his violent behaviour towards intimate partners. Ms Tolond wrote:
The sentencing Judge (J.L. Rota, 2 February 2011) listed “serious violence” inflicted by Mr McCord against his partner who was said to be pregnant at the time. This violence included head-butting the victim on three occasions, punching her in the stomach, kicking her in the jaw and threatening to kill her by pushing her further out to sea whilst on Paihia beach. The Judge made reference to Mr McCord’s difficulty with emotional regulation which was precipitated in this instance by fears of the victim’s infidelity.
[37] Ms Tolond then wrote:
A review of file information indicated that serious violence towards intimate partners has been a characteristic feature of Mr McCord’s offending over time. In addition to the two episodes of violence towards intimate partners discussed above, Mr McCord has been convicted of a further five Male
Assaults Female offences between 1999 and 2007. A central feature of Mr McCord’s domestic violence appears to be excessive use of physical force highlighted by his 1999 Male Assaults Female conviction where it was referenced in the JSN that he punched his partner 15 times in the head.
[38] From the contents of Mr McCord’s criminal and traffic conviction history report and the offending summarised and referred to in Ms Tolond’s health assessor report, I am satisfied that Mr McCord has demonstrated a pervasive pattern of serious sexual and violent offending extending back to when he was aged around 20 to the time of his offending against the 77 year old victim on 5 February 2013.
Is there a high risk that the offender will in the future commit a relevant sexual offence?
[39] In addressing this issue the Court is required to consider and apply the provisions of s 107IAA of the Act which provides that a Court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender meets the combined criteria set out in s
107IAA(1)(a), (b), (c) and (d).
[40] These criteria are all addressed by Ms Tolond in her report. In respect of each of the four criteria, she has concluded that Mr McCord satisfies the criteria by:
(a) displaying an ongoing drive to sexually re-offend;
(b)his predilection for sexual offending cannot be ruled out when the combination of his entrenched anti-social offending and likely sexual preoccupation are considered;
(c) his inability to control his sexual impulses; and
(d)he has displayed a lack of acceptance of responsibility or remorse for his offending. Ms Tolond noted that Mr McCord has often externalised responsibility for his offending and consistently negated personal responsibility for his sexual offending by engaging in distorted thinking whereby he either blames the victims or says that he
was entitled to engage in sexual behaviour irrespective of societal rules and norms.
[41] As regards Mr McCord’s understanding of or concern about the impact of his sexual offending on actual or potential victims, Ms Tolond notes that Mr McCord lacks insight into his sexually abusive and inappropriate behaviour towards female victims.
[42] In addition to these assessments, Ms Tolond used a number of actuarial instruments in order to evaluate the level of risk of Mr McCord committing further relevant sexual or violent offences while in the community. The measures employed by Ms Tolond included instruments that assessed both static and dynamic risk factors for sexual and violent recidivism. The first instrument used was the RoC*Rol, which is an actuarial measure developed for the Department of Corrections to assist in the prediction of an offender’s risk of re-imprisonment. The RoC*Rol is based on actuarial predictors which are static factors unchangeable by individual effort. This instrument projects the likelihood of an individual being re-imprisoned within five years of either a community sentence being imposed or release from a prison sentence. This instrument enables offenders to be grouped into one of five imprisonment risk bands.
[43] Although the actual imprisonment rate is recorded over three years, over five years the RoC*Rol predictions have been shown to be 75 per cent accurate. The five categories are described as Low, Moderate/Low, Moderate, High and Very High. A person in the low category has a projected likelihood of re-imprisonment after five years of 12 per cent. By contrast, a person in the very high category has a projected re-imprisonment rate after five years of 90 per cent.
[44] The assessment of Mr McCord under this instrument placed him in the high risk category, meaning that the projected likelihood of his re-imprisonment after five years is 75 per cent.
[45] Ms Tolond also used the Automated Sexual Recidivism Scale (ASRS). The
ASRS is a brief actuarial screening instrument designed to estimate the likelihood of
further convictions for sexual offences among offenders who have already been sentenced in the District or High Court for a sexual offence. The only information required for completing an ASRS assessment is that contained in an electronic version of an offender’s official criminal conviction history record from which ASRS scores are then electronically generated. These assessments result in offenders being placed in four categories, being Low, Medium-Low, Medium-High and High. On assessment by means of the ASRS instrument, Ms Tolond reported Mr McCord as being placed in the high risk category. Offenders in that category are re-convicted for sexual offending within a period of 10 years following their release at the rate of
50 per cent compared to an overall sexual recidivism rate of 16 per cent. Again this assessment is based solely on static risk predictors.
[46] A further assessment tool employed by the health assessor is STABLE 2007. The STABLE 2007 assessment instrument assesses stable dynamic factors, being factors which, while amenable to change, are those which tend to persevere for months or years. These factors have been shown to increase or decrease the likelihood of sexual recidivism as determined from static risk factors. The STABLE
2007 assessment tool is comprised of 13 items which measure five relatively stable criteria. In Mr McCord’s case, 11 of the possible 13 items comprising the factors shown to either increase or decrease the likelihood of sexual recidivism were present.
[47] Ms Tolond also used the Spousal Assault Risk Assessment Guide (SARA) tool to assess Mr McCord’s risk of committing intimate partner violence. This assessment guide is based on risk factors that have been clinically and empirically identified as those most predictive of spousal abuse. On this assessment, Mr McCord was found to possess 11 of the possible 20 factors ( and two further factors considered to be partially present), that are linked to spousal assault, and he was identified as having a high risk of violence towards an intimate partner.
[48] On the basis of a multi method assessment of Mr McCord’s risk of further relevant re-offending using RoC*Rol, ASRS, STABLE 2007, VRS ratings and SARA, Ms Tolond the health assessor concluded:
… it is considered that there is a very high risk of Mr McCord committing further relevant sexual and/or violent offences while in the community.
[49] I am satisfied that each of the characteristics or behaviours set out in s 107IAA(1)(a) – (d) have been shown by the applicant to be present or apply in the case of Mr McCord, and further I am satisfied that there is a high risk of Mr McCord committing a relevant sexual offence in the future.
Is there a very high risk that the offender will in the future commit a relevant violent offence?
[50] In relation to assessing Mr McCord’s violent behaviour, Ms Tolond used the Violence Risk Scale (VRS). This is a risk assessment tool that was developed specifically for use with offenders to integrate information about violence assessment, risk prediction and treatment readiness and change. Ms Tolond in her report explained that VRS scores have been found to be moderately predictive of both violent and general recidivism over time for periods of up to 4.4 years following release. The VRS considers six static factors and 20 dynamic factors. The health assessor noted that Mr McCord has a score on the VRS that is in high risk category established in international research on the predictive validity of the VRS.
[51] Ms Tolond also referred to her use of the Spousal Assault Risk Assessment
Guide (SARA), as set out above.
[52] Section 107IAA(2) provides however that the Court may determine that there is a very high risk that an eligible offender will commit a relevant violent offence only if it is satisfied that the offender possesses a combination of all of the characteristics prescribed by subs (a), (b) and (c). In her report, Ms Tolond addressed each of these characteristics as described by the statutory criteria.
[53] Firstly as regards the issue of whether Mr McCord has demonstrated the characteristic of possessing intense drive, desires or urges to commit acts of violence,3 Ms Tolond noted that Mr McCord has relied on violence as a problem
solving strategy since his early adolescence. She commented in her report that:
3 Parole Act 2002, s 107IAA(2)(a)(i).
File information confirmed that not only does Mr McCord conceptualize violence as a viable conflict resolution strategy but that he has been unable to alter his behaviour in response to sanctions. It is the writer’s opinion that Mr McCord’s demonstration of an intense drive, desire or urge to commit acts of violence is prevalent mostly within the contexts of relationships and is exacerbated by his relapse into substance abuse in the community. His violence within these contexts is considered excessive which may attest to the intensity of the drive to act violently.
[54] I agree with Ms Tolond’s conclusion that Mr McCord does demonstrate the characteristic of possessing intense drive, desires or urges to commit acts of violence.
[55] The second characteristic is extreme aggressive volatility.4 Ms Tolond notes in her report that aggressive volatility has been evident as a recurrent theme throughout Mr McCord’s offending history and life in general. Ms Tolond considers that Mr McCord’s aggressive volatility is a significant feature of his behaviour in the community and is a characteristic that gives rise to an ongoing risk of violence. Again, I agree.
[56] The third characteristic is that of persistent harbouring of vengeful intentions towards one or more other persons.5 In this regard Ms Tolond notes that there was limited overt evidence on file to suggest that Mr McCord’s violent behaviour was the result of vengeful intentions, or that he was prone to themes of retribution and grievance. The one example of this type of behaviour identified by Ms Tolond related to Mr McCord’s conviction in 1999 arising from his attack on his then
partner’s father who he believed was instrumental in keeping he and his partner apart. She observes that Mr McCord’s violent behaviour has tended to follow after he has become enraged due to conflicts arising within his intimate or domestic relationships whereby he has resorted to acts of violence in order to gain control of his partner. Ms Tolond concludes that it is plausible to assume that any future intimate partners are likely to become the subject of his hostility and paranoia due to his entrenched personality traits.
[57] As regards this characteristic, Ms Hamill for the applicant refers to the observation of Venning J in Department of Corrections v CJW wherein he said:6
On the basis of the evidence taken as a whole (particularly Mr Louw’s evidence which was not seriously challenged on this point), and Mr W’s history, I am satisfied Mr W has persistent vengeful intentions, not necessarily towards one particular person but directed at whomever he considers may have slighted him at the time.
[58] The applicant submits that McCord’s past offending illustrates that he does possess this characteristic of persistent harbouring of vengeful intentions. Having regard to his conduct whereby he has acted violently towards both his intimate partners in respect of whom he had developed feelings of sexual jealousy, and also towards others in response to feeling disrespected, I am satisfied that he does possess this characteristic. The violence he has exhibited in those circumstances was not reactive and an immediate response to a particular situation, but rather it appears to have been the result of rumination and a subsequent acting out of a vengeful intention.
[59] The fourth characteristic is either displaying behavioural evidence of clear and long term planning of serious violent offences to meet a premeditated goal (of which there is no indication in Mr McCord’s case), or a characteristic of having limited self-regulatory capacity.7 So far as self-regulatory capacity is concerned, Ms Tolond refers to Mr McCord’s criminal history as suggesting a pervasive difficulty with self-regulation, as evident not only from the offending itself, but also his poor compliance with community supervision, including re-offending while still on sentence, as well as his general rule breaking behaviour. Ms Tolond notes in her
report that Mr McCord’s criminal conviction history, institutional behaviour, long term substance abuse and sentence non-compliance all indicate that he has exhibited poor behavioural controls for much of his life. She observed:
The combination of his antisocial attitudes and behavioural impulsivity has translated into a pattern of behaviour which has been dominated by impulse and strong emotions with limited evidence of self-regulatory capacity generally. An analysis of Mr McCord’s recent institutional behaviour, however, indicated an improved ability to self-regulate which may suggest
that Mr McCord’s ability to regulate his behaviour is able to be supported
with external controls and ongoing supervision.
[60] I am satisfied that Mr McCord has been shown to possess the characteristic of having limited self-regulatory capacity.
[61] The fifth characteristic is that of displaying an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.8 Ms Tolond notes in her report the findings of two psychological reports relating to Mr McCord which concluded that he was lacking in both remorse for his offending and in an understanding of the severity of harm caused by his violent behaviour towards his victims. Ms Tolond said of this characteristic:
It is possible that Mr McCord’s lack of victim empathy is due to his enduring antisocial attitudes which, to date have not been the target of treatment. Furthermore, Mr McCord’s enduring personality style, reflective of social detachment, negativity and erratic mood and behaviour may hinder his ability to perspective take. Consequently, it is the writer’s opinion that Mr McCord manifests minimal appreciation of the impact of his violent offending on his victims.
[62] I agree with Ms Tolond’s conclusion. It is clear from the material available and from his history of offending that Mr McCord has little or no appreciation or understanding of the affect of his offending upon his victims, and by his practice of engaging in excuse making for his offending and endeavouring to deflect responsibility for the offending on to his victims, it is equally clear that he has little or no concern for his victims. I am satisfied that he also possesses this characteristic.
[63] Having found that Mr McCord possesses all of the characteristics required, I am also satisfied that the applicant has shown that the requirements of s 107IAA have been met, and that it is open to me to find that there is a very high risk that Mr McCord will in the future commit a relevant violent offence.
Assessment of the risk of re-offending
[64] From an analysis of the dynamic and static risk factors she identified as relating to Mr McCord, together with specific information related to the pattern of
8 Section 107IAA(2)(c).
offending, Ms Tolond addressed the parameters of his risk of reoffending. She said in her report:
It is considered that there is a very high risk that Mr McCord will engage in relevant offending within ten years of release. If Mr McCord was to sexually reoffend, he is most likely to reoffend against pubescent or adult females who are known to him (even briefly) or whom he perceives as viable relationship partners. … Precipitants to sexual offending are likely to include a relapse into substance use, non-compliance with antipsychotic medication, sexual preoccupation, emotional dysregulation and feelings of loneliness. There may be limited planning involved and sexual offending may occur impulsively or opportunistically, especially in the context of a relapse into substance use. … Sexual offending is likely to range from indecent assault through to unlawful sexual connection and may include accompanying interpersonal violence in order to gain power and control over the victim.
(emphasis added)
[65] As regards the risk of future violent offending, Ms Tolond said in her report:
Noting Mr McCord’s predilection for substance abuse, poor emotional control and antisocial attitudes, he is considered at very high risk of future violence, specifically violence against intimate partners. It is within the context of relationship discord, substance abuse and high negative affect (anger, frustration, perceived betrayal and rejection) that Mr McCord’s risk of violence towards a partner is most apparent. Violence may be varied and range from threats to kill through to severe assault with or without a weapon and kidnapping. Mr McCord’s violent offending is likely to be disproportional to the triggering event and as such may result in extensive victim injury.
[66] Mr Tolond concluded:
Mr McCord presents with a very high risk of both sexual and violent reoffending, complicated further by mental health concerns, reduced cognitive functioning and a history of substance abuse. He has spent a large proportion of his adult life institutionalised and his history reflected a pattern of rapid destabilisation post release. Furthermore, Mr McCord is an untreated offender with outstanding needs in regard to his risk of sexual and violent reoffending. With a high number of dynamic risk factors, and few risk mitigation strategies, risk reduction may be more successful if supported by external monitoring and management of Mr McCord’s behaviour. Without ongoing supervision, Mr McCord is likely to engage in serious offending whereby his needs are prioritised over others and vulnerable victims harmed in his pursuit for immediate gratification of his needs.
Overall Assessment
[67] Notwithstanding the expert opinion evidence presented by Ms Tolond, the
assessment of the risk of future serious sexual and violent offending is ultimately a matter for the Court to determine. The Court of Appeal in Barr v Chief Executive of the Department of Corrections9 said:
We wish to make it clear, however that first instance Judges need not accept it as necessary, or right, to rubber stamp opinions of health assessors advanced by the Department of Corrections in ESO applications (and we make it clear that the Judge did not do so in this case). What is required is a careful assessment of all the historical and current factors, along with expert opinions of others, bearing in mind that an ESO can have substantial ongoing impact on an offender who has already completed the sentence imposed by the Court for the offending. The risk of reoffending has to be such that cannot properly be ignored when viewed against the gravity of likely reoffending. …
[68] In my view, the evidence in the present case is cogent and compelling. While Ms Tolond’s written report was relied upon by the applicant as providing the material and information to establish the requirements for the making of an ESO, Ms Tolond also gave viva voce evidence and was cross-examined by Ms McLean. I was impressed by the thorough and measured approach she took to her task of assessing and reporting on Mr McCord, and I have no hesitation in accepting her evidence, and specifically her expert opinion evidence, as being reliable and well informed. Although I have found her evidence and opinions to be of considerable assistance, I have nevertheless addressed and applied my own judgment to all of the issues and each of the statutory requirements myself, so as to make an independent assessment of those matters, rather than relying exclusively on Ms Tolond’s report and her conclusions. Having done so, I am well satisfied that the evidence presented in support of the application both satisfies the statutory prerequisite criteria, and demonstrates that there is a high risk of Mr McCord committing a relevant sexual offence in the future, and a very high risk of him committing a relevant violent offence in the future. The behavioural characteristics which he possesses and exhibits are reflected by his history of demonstrating a lack of self control and self regulation in the past, both as regards sexual and violent offending. While it appears
that his medical condition may have played a part in his behaviour,10 and that
treatment for his condition may well improve the situation and reduce the risk of reoffending, he does have a history of failing to comply with medical treatment.
9 Barr v Chief Executive of the Department of Corrections CA 60/06, 20 November 2006 at [32].
10 In 2012 Mr McCord was diagnosed as suffering from schizophrenia.
Despite the more recent indications that Mr McCord has shown an improved ability to self-regulate, I am satisfied that he nevertheless remains a high risk of reoffending and of committing a relevant sexual offence, and a very high risk of reoffending and committing a relevant violent offence.
[69] I am thereby satisfied that the applicant has established the existence of the prerequisite criteria for the making on an ESO. Accordingly I now turn to consider the appropriate term of an ESO.
The term of the ESO
[70] I relation to the determination of the appropriate term of an ESO, the Court of
Appeal in Moeke v Chief Executive of the Department of Corrections,11 observed:
[14] The focus of s 107I(5), as this Court commented in Peta must be on the level of risk, its likely duration, and the seriousness of potential harm to the victim. The “minimum period” must be for the required purpose of community safety.
…….
[28] We consider, and suggest the respondent ensure in future cases where extended supervision orders are being sought, that the psychological reports provided include a considerably greater focus on the appropriate s107I(5) minimum term. There was some suggestion in counsel’s submissions that the respondent relying on the assessment tools it employs, almost invariably seeks a ten year minimum term. Whether the maximum prescribed by Parliament should usually be the minimum; whether the statistical information is unassailable; and indeed whether the respondent has any such practice, are not matters about which we will speculate in this appeal.
[29] Nonetheless, we consider that the materials placed before a court invited to make an extended supervision order should include:
(a) a section in the psychological report that addresses fully the minimum term sought for the particular offender against the s 107I(5) criteria;
(b) a thorough assessment of the efficacy and suitability of post
–release plans including their nature and duration;
(c) relevant updating information at the date of the extended supervision order hearing; and
(d) steps which the offender has taken to address perceived risks.
[71] Ms Tolond’s report was prepared prior to Mr McCord’s release from prison in April 2016,12 and there was no detailed assessment or information presented by the applicant which addressed the other matters referred to by the Court of Appeal in Moeke. However, she carefully explained in her evidence the reasons why her report did not include a section specifically addressing the issue of the minimum term sought against the s107I(5) criteria:
I haven’t recommended 10 years so I just wanted to clarify that, as psychologists our job is to assess risk and so we’ve been advised by the department that we don’t give an indication of duration so what happens in terms of the process our scope is very clear, we assess risk that then goes to a panel and that panel sits in Wellington, and it’s made up of departmental staff members. It is a multi professional panel, they decide on what they’re going to propose for or take to Court for the length of order but psychologists we don’t do that, and we’ve actually been advised not to. And I know that’s tricky but that’s the position that we, we’re risk assessors that’s what we do. In terms of identifying the length of a sentence or an order that’s been always the function of the Court and psychologists don’t advise. We certainly can talk to longevity of risk absolutely, but in terms of advising on a length of an order that’s well beyond our scope.
….
You know, and a length of 10 years, I mean 10 years is arbitrary and it could be 5 years, it could be 15 years, it could be 20 years. So my job is to assess risk and I can certainly talk to, as I have done, what we know from research about how long risk persists. Some statistics around that, I can talk to the fact that in Mr McCord’s case he began offending at age 17 and his most recent is 32, so we’ve already got a 15 year period of persistence of sexual offending. I can talk to all of those factors but in terms (of) recommending as I said it would be outside of my scope.
[72] Notwithstanding the absence of information of the kind contemplated and described by the Court of Appeal in Moeke, there was included within Ms Tolond’s report and the other material before me, including Dr Armstrong’s report, information that has enabled me to address and consider the s 107I(5) criteria in an informed manner and is sufficiently informative and detailed as to provide a basis for my assessment of the appropriate term of the ESO.
[73] It is appropriate to also note that in fixing the term of an ESO the Court is required to fix the period in light of consideration of the statutory criteria in s
107I(5), and must not adopt a practice of imposing a longer term on the basis that the Court has power to subsequently cancel or modify the order pursuant to s 107M(1) where it appears that the offender no longer poses a risk of offending within the remaining term of the order.
[74] Section 107I(4) provides that the term of an ESO must be stated in the order and must not exceed ten years.
[75] Turning to the s107I(5) criteria. I have found that both as regards relevant sexual offending and relevant violent offending, there is a high risk of Mr McCord reoffending. From his history of offending, it is clear that his sexual offending has persisted since he was aged around 17 years, and the assessments undertaken by Ms Tolond as updated by her in the course of her evidence at the hearing, all indicate that he currently remains a high risk of reoffending in terms of relevant sexual offending and a very high risk in terms of relevant violent offending. The nature of his prior sexual offending has resulted in serious harm to his victims, and any reoffending by him is likely to be of the same nature and cause the same or similar levels of harm to any future victim or victims.
[76] It is simply impossible to determine with any certainty how long that risk of reoffending will continue for. What is known is that Mr McCord now aged 35, has manifested the identified risk by offending repeatedly over the past period since age
17, including his most recent offending in 2013 while he was subject to an earlier extended supervision order. I also note that Dr Armstrong observed in his report that Mr McCord’s criminal offending history indicated that his offending over time appeared to be escalating.
[77] Having regard to that background and Mr McCord’s criminal offending history, there is no reason to believe that he will alter his well established pattern of behaviour, and cease offending anytime in the near future.
[78] Ms McLean has emphasised the potential for a positive change and reduction of the risk of reoffending arising from medical treatment for his mental health. In this context I note that Dr Armstrong commented in his report that despite the likelihood of reoffending being assessed as high, the severity of Mr McCord’s offending is likely to be significantly moderated by active treatment for mental illness, and monitoring his situation as regards substance abuse, as well as by the provision of long term appropriate supported accommodation. He further comments that it is possible that Mr McCord’s as then undiagnosed mental illness, may have been an operative factor in his prior offending. However any reduction in the risk of reoffending that is the result of medical treatment, monitoring and support measures, will largely if not totally depend on how well Mr McCord responds to the treatment and how positively he accepts and adheres to the support structure that is put in place for him. In this regard it is appropriate to note that Mr McCord’s behaviour since his release from prison in April 2016, reflects the apparent effort he has made to remain compliant with treatments and conditions of his release.
[79] Furthermore, any such improvement in his behaviour will need to be well established over time before it would be appropriate or possible to reassess the level of risk of reoffending he presently presents. For now, I consider that the Court should proceed on the basis of the assessment made that he is and remains a high risk of reoffending.
[80] The purpose of an ESO is to protect members of the community from those who pose a real and ongoing risk of committing serious sexual or violent offences.13
[81] When I come to consider the likely duration of the risk of Mr McCord’s reoffending, in my view it is realistic and reasonable to proceed on the basis that the risk will subsist well into the future, and certainly for a period of ten years. In my view a term of 10 years is the minimum period required to meet the purposes of safety of the community and having regard to the criteria contained in s 107I(5). Mr McCord’s history well illustrates the persistent nature of his offending and its association with substance abuse. I consider that an ESO term of ten years is
necessary in order to protect members of the public. While the restrictions of an ESO
13 Parole Act 2002, s 107I(1).
of that duration are no doubt onerous, the restrictions and close supervision that I intend to impose will provide an additional layer of protection of the public that is necessary and warranted having regard to Mr McCord’s past offending and the risk of reoffending that he presents.
Extensive monitoring condition
[82] The applicant also seeks an order requiring the Parole Board to impose an intensive monitoring condition upon Mr McCord.14 Such a condition will require Mr McCord to submit to being accompanied and monitored for up to 24 hours a day. An intensive monitoring order must not be made for a term longer than 12 months.
[83] In her report Ms Tolond concluded:
Mr McCord presents with a very high risk of both sexual and violent reoffending, complicated further by mental health concerns, reduced cognitive functioning and a history of substance abuse. He has spent a large proportion of his adult life institutionalised and his history reflected a pattern of rapid destabilisation post release. Furthermore, Mr McCord is an untreated offender with outstanding needs in regard to his risk of sexual and violent reoffending. With a high number of dynamic risk factors and few mitigation strategies, risk reduction may be more successful if supported by external monitoring and management of Mr McCord’s behaviour. Without ongoing supervision, Mr McCord is likely to engage in serious offending whereby his needs are prioritised over others and vulnerable victims harmed in his pursuit for immediate gratification of his needs.
[84] Dr Armstrong expressed a similar opinion in his report:
In my opinion, Mr McCord’s risk remains high, for violent, general, and sexual reoffending remains high. It is notable that he has made an effort in many areas of his life in order to remain out of prison for several months, and his family have noted an improvement in his attitude towards guidance and help. He has engaged well with Mental Health Services and been compliant with treatment.
Although the likelihood of offending is assessed as being high, the severity of this offending is likely to be significantly moderated by active treatment for mental illness, monitoring of his situation (for instance, involvement in a relationship or escalation of substance abuse) and the provision of long term appropriate supported accommodation.
Management of his risk in the community requires recognition of his intellectual limitations, which may be of such severity that it is unreasonable
14 Section 107IAC.
to expect him to live independently, even though he is able to work for his uncle.
[85] I consider that the nature and level of the risk of reoffending here make this a clear case for the making of an intensive monitoring order, and I direct the Parole Board to impose an intensive monitoring condition upon Mr McCord for a term of
12 months.
Conclusion
[86] Mr McCord has an extensive history of offending both in terms of sexual offending and violent offending, and he currently presents a high risk of reoffending. An ESO will provide a means of restricting, supervising and monitoring him upon his release into the community, in the interests of protecting members of the community and mitigating the risk he presents of reoffending. The standard extended supervision conditions include a requirement that the offender take part in a
rehabilitative needs assessment,15 and I note that Ms Tolond recommends that Mr
McCord be referred to the National Intellectual Disability Care Agency (NIDCA) for a formal assessment of his cognitive functioning to determine whether he is eligible for further supportive services.
[87] An intensive monitoring condition will add a further layer of oversight and supervision for a 12 month period which will ensure that a close watch is kept on Mr McCord and his compliance with treatment able to be observed and monitored. These measures are all intended to mitigate the risk of Mr McCord reoffending and to thereby operate to protect the community from the risk of his reoffending.
[88] Accordingly, I grant the application and make an Extended Supervision Order in relation to Mr McCord for a term of ten years.
[89] I also make an order pursuant to s 107IAC requiring the Parole Board to impose an intensive monitoring condition on Mr McCord for a duration of 12
months.
Paul Davison J
15 Section 107JA.
7
0
1