Department of Corrections v McCorkindale

[2021] NZHC 1251

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2005-409-000178

[2021] NZHC 1251

UNDER

Section 107RA of the Parole Act 2002

IN THE MATTER

of a review of an Extended Supervision Order

BETWEEN

DEPARTMENT OF CORRECTIONS

Plaintiff

AND

ROBERT JOHN MCCORKINDALE

Defendant

Hearing:	31 May 2021
Appearances:	C J Boshier for Applicant M Starling for Respondent
Judgment:	31 May 2021

ORAL JUDGMENT OF VENNING J

Solicitors:           Raymond Donnelly & Co, Christchurch Counsel:  M Starling, Christchurch

DEPARTMENT OF CORRECTIONS v MCCORKINDALE [2021] NZHC 1251 [31 May 2021]

[1]    Robert John McCorkindale has several convictions for assaulting females, particularly females under 12. On 17 January 2006 he was made subject to an Extended Supervision Order (ESO) under the Parole Act 2002. On the expiry of the first ESO Mr McCorkindale was subject to an interim supervision order until a second ESO was made on 29 April 2016. That order was made for a period of 10 years so expires 28 April 2026.1

[2]    An interim detention order was made on 26 April 2017. That was suspended to allow Mr McCorkindale to remain in his community accommodation. This Court granted an application for a Public Protection Order (PPO) on 17 October 2017 but then Mr McCorkindale subsequently successfully appealed that order. The PPO was quashed on 16 August 2019 and then subsequently on 22 September 2020 this Court declined to impose a PPO on Mr McCorkindale, holding that the risk to the community was met by the conditions applicable pursuant to the existing ESO.

[3]    The Acting National Commissioner has applied for a review of Mr McCorkindale’s ESO as is required by s 107RA of the Parole Act given the length of time that has passed since the imposition of the first ESO:

107RA Review by court

(1)A sentencing court must, on or before the review date specified in subsection (2), commence a review of an extended supervision order in order to ascertain whether there is—

(a)a high risk that the offender will commit a relevant sexual offence within the remaining term of the order; or

(b)a very high risk that the offender will commit a relevant violent offence within the remaining term of the order.

(2)The review date of an extended supervision order is,—

(a)if an offender has not ceased to be subject to an extended supervision order since first becoming subject to an extended supervision order, the date that is 15 years after the date on which the first extended supervision order commenced; and

(b)thereafter, 5 years after the imposition of any and each new extended supervision order.

1      Minute of Brown J, dated 29 April 2016.

(3)A review under this section must be commenced by way of an application by the chief executive, which may be made at any time within 4 months before the review date.

(4)For the purpose of a review under this section, sections 107F (except subsection (1)), 107G, 107GA, and 107H apply (with any necessary modification) as if the review were an application for an extended supervision order.

(5)Following the review, the court must either confirm the order or cancel it.

(6)The court may only confirm the order if, on the basis of the matters set out in section 107IAA, it is satisfied that there is—

(a)a high risk that the offender will commit a relevant sexual offence within the remaining term of the order; or

(b)a very high risk that the offender will commit a relevant violent offence within the remaining term of the order.

(7)For any period during which time has ceased to run on an extended supervision order under section 107P, time also ceases to run on the period specified in subsection (2) for the purpose of calculating the review date of an extended supervision order.

[4]As the Commentary to that section confirms:2

Where an offender is the subject of successive extended supervision orders, the sentencing court is required to periodically review whether he or she continues to meet the statutory criteria for the order to continue in force.

[5]On any such review:

The court must confirm the order if it is satisfied that within the remaining term of the order there is a high risk that the offender will commit a relevant sexual offence, …

[6]    In Mr McCorkindale’s case the relevant consideration is whether there is a high risk he will commit a relevant sexual offence. If the Court is not satisfied as to that risk it must cancel the order. The review is for the benefit of Mr McCorkindale.

[7]    For the purposes of the review, and to assist counsel and the Court, Mr McCorkindale has been assessed by Steve Berry, a registered clinical psychologist.

2      Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [PA107RA.01].

Mr McCorkindale co-operated fully with Mr Berry. Mr Berry notes in his conclusion that:

Mr McCorkindale remains at … Above Average risk of further sexual reoffending if he was currently at liberty to offend. His risk is well contained at present owing to his [ESO] regime and to his placement at the Salisbury Street Foundation.

[8]    Mr Berry is of the opinion that there is evidence Mr McCorkindale continues to present as exhibiting all the relevant Parole Act, s 107IAA criteria. There is no evidence that he has internalised how to control his propensity for sexual reoffending, despite significant intervention over many years.

[9]Mr Berry goes on to note:

Mr McCorkindale is accepting of his [ESO] conditions and is abiding by them. He is also adhering to requirements of residing at the Salisbury Street Foundation, where he is well settled and well cared for. Mr McCorkindale’s assessment of his own risk as non-existent shows an ongoing lack of insight. He will require an ongoing high level of supervision and monitoring to successfully manage his risk of reoffending. The current [ESO] appears to be in accordance with [his] needs and contributes to public safety.

[10]   While concluding that the ESO is required, Mr Berry’s report is positive to the extent that it confirms the ESO seems to be meeting Mr McCorkindale’s needs. Mr McCorkindale is now in his mid-60s. His last offending was in January 1999, over 20 years ago and his present environment is supportive.

[11]   I note that Mr McCorkindale currently resides in a flat in the Salisbury Street Foundation site in Christchurch. Mr Berry recorded him as being happy and settled in this placement. Further, it is Mr McCorkindale’s wish, and he understands he has been guaranteed a home for life by the Foundation. The manager of the Foundation supported Mr McCorkindale. Conversations with other of Mr McCorkindale’s support people have indicated they were aware of his risk and the ESO conditions and were focused on ensuring they were adhered to.

[12]   Mr McCorkindale produced a letter from the New Zealand Police confirming he had completed his reporting period on the register and would no longer be a registered person after January this year.

[13]   Mr Berry reviewed Mr McCorkindale’s ESO conditions with him. Mr McCorkindale stated he feels comfortable with the conditions to which he is subject but added he was hoping to be allowed some time on the internet with staff supervision at some stage in the future.

[14]   Ms Bartlett has confirmed Mr McCorkindale has been compliant with his conditions. He has some residual tendency to a sense of entitlement and finds it difficult to be completely honest about his sexual behaviour because, as he acknowledged, he fears probation officers somewhat. They are recognised as perhaps entrenched reactions.

[15]   Mr McCorkindale lives with a flatmate in a two-bedroom house which backs onto the Foundation property. He gets on well with his flatmate, has a written activity plan and a support person with him at all times when not on the property. He has stated himself as being happy with his lifestyle and committed to staying there.

[16]   Counsel for Mr McCorkindale, Mr Starling, has confirmed he has acted for Mr McCorkindale for a number of years and is aware of his background. He has discussed the present application for review with Mr McCorkindale and the report the Court has referred to. Mr Starling has confirmed that Mr MrCorkindale accepts he has no particular issues with the application, which as I have said, is effectively for his benefit.

Result

[17]   Having regard to Mr McCorkindale’s history, his record, and the most up-to- date report that is before the Court, and also having the reassurance that experienced counsel familiar with Mr McCorkindale’s situation does not oppose or suggest any major changes should be implemented on this review, the Court is satisfied that there remains a high risk that Mr McCorkindale, if not subjected to the continued conditions of the ESO, will commit a relevant sexual offence within the remaining term of the order, so that it is appropriate for the order to continue for its term.

[18]I make orders accordingly.

Venning J