Department of Corrections v Miller
[2017] NZHC 2527
•17 October 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2017-485-015 [2017] NZHC 2527
BETWEEN DEPARTMENT OF CORRECTIONS
Applicant
AND
RICHARD MILLER Respondent
Hearing: 22 September 2017, with submissions received 6 October 2017 Appearances:
E Fitzherbert for the Applicant
M Phelps for the RespondentJudgment:
17 October 2017
JUDGMENT OF DOBSON J
[1] The respondent (Mr Miller) is due for release on 18 October 2017 after serving the full extent of a sentence of nine years and nine months’ imprisonment for sexual offending against children.
[2] The Department of Corrections (the Department) has applied for an extended supervision order (ESO), together with an order requiring the Parole Board to impose an intensive monitoring condition on Mr Miller. The ESO is sought for a period of 10 years.
[3] Mr Miller originally opposed all aspects of the application, but before the hearing his counsel conveyed Mr Miller’s instructions that he did not oppose the making of an ESO. Mr Miller still contests the 10-year duration sought and also the
requirement for intensive monitoring.
DEPARTMENT OF CORRECTIONS v MILLER [2017] NZHC 2527 [17 October 2017]
[4] I acceded to counsel’s request that they be given time to prepare written submissions that took account of the evidence heard at the hearing. The timetable was that Mr Phelps’ submissions for Mr Miller were to be filed and served by
29 September 2017, and those for the Department in response by 6 October 2017.
[5] Unfortunately unanticipated circumstances delayed the completion of
Mr Phelps’ submissions until 8 October 2017. Those in response for the Department were then received on 12 October 2017.
The offending
[6] The oldest of the offences occurred in 1990, involving two convictions for sexual violation by rape and three for sexual violation by unlawful sexual connection. The victim on that occasion was aged between 10 and 11. Mr Miller was also convicted of an indecent act on a child under 12 that occurred in September 2007. The victim in that offending was aged six. A jury found Mr Miller not guilty of a charge of attempted rape of that victim. The families of both victims were known to
Mr Miller, to the extent that he babysat the victims.
[7] Mr Miller has also been convicted of indecent assaults of two teenage girls, one aged 15 at the time of the offending and the other 16. That offending occurred between February 2006 and September 2007. Both victims in that offending were known to Mr Miller and domestic arrangements afforded him an opportunity for courses of conduct involving indecent touching of their buttocks and breasts.
[8] Mr Miller was sentenced for all these convictions in December 2008. On the convictions for rape and unlawful sexual connection he was sentenced in the High Court where cumulative sentences totalling nine years and nine months’ imprisonment were imposed. The following day the remaining convictions for indecent assault were dealt with in the District Court where the indecent assault convictions resulted in concurrent sentences of imprisonment.
[9] A relevant consideration in this application is that Mr Miller has maintained his denial of all the offending which has no doubt been material in the Parole Board’s
consideration of parole. It has also been material to the scope of mental health assessments for the present application.
The statutory test
[10] Section 107I of the Parole Act 2002 provides:
107I Sentencing court may make extended supervision order
(1) 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 serious sexual or violent offences.
[11] An ESO may be made if the Court is satisfied, having considered the matters addressed in a health assessor’s report prepared and provided to the Court for this purpose, that the offender has or has had a pervasive pattern of serious sexual or violent offending and (in the case of sexual offenders) that there is a high risk that the offender will in future commit a relevant sexual offence.
[12] Statutory criteria for assessing risk are set out in s 107IAA which provides, in part:
107IAA Matters court must be satisfied of when assessing risk
(1) 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—
(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.
[13] ESOs must be made for a stipulated term, which may not exceed 10 years. Considerations to guide the length of any term for which an ESO is made are in subs (5) of s 107I as follows:
(5) 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.
[14] In a 2014 amendment to the Parole Act, provisions were added to empower the Chief Executive to apply to the High Court for orders imposing intensive monitoring conditions on offenders in respect of whom ESOs are made. Any such order operates as a direction requiring the Parole Board to impose an intensive monitoring condition on the offender.1 An intensive monitoring condition must be for a specified length not longer than 12 months,2 and such orders may only be imposed once.3
[15] The effect of an intensive monitoring condition is described in s 107IAC(2) as follows:
(2) An intensive monitoring condition is a condition requiring an offender to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the chief executive, to undertake person-to-person monitoring.
[16] There is no statutory guidance on criteria to be considered when such a condition is sought. Clearly it is highly intrusive in the person’s life and will only be justified where a high risk of sexual offending exists and is likely to be exacerbated if the transition from prison to living in the community is not able to be managed without
close and constant supervision.
1 Sections 107IAB(1) and 107IAC(1).
2 Section 107IAC(3).
3 Section 107IAC(5).
Assessment of Mr Miller
[17] A health assessment report was prepared on Mr Miller dated 9 December 2016. It had been arranged because the Department was then considering an application for an ESO. The report was prepared by Dr Branko Coebergh, a registered psychologist.
[18] The report was based on what was intended to be the first of two meetings that Dr Coebergh held with Mr Miller. The interview took an hour and 30 minutes and the report records Mr Miller being generally polite and answering most questions that were put to him. After the meeting, and apparently after an unsatisfactory appearance before the Parole Board, Mr Miller withdrew his consent for what had been scheduled as a second interview.
[19] Dr Coebergh used psychometric instruments in his assessment, including the Automated Sexual Recidivism Scale (ASRS), Violence Risk Scale: Sexual Offender Version (VRS:SO) and the Psychopathy Check List (Screening Version) (PCL:SV).
[20] Mr Miller’s withdrawal of cooperation in the assessment process included declining the opportunity to review the report being prepared by Dr Coebergh.
[21] Dr Coebergh had available to him numerous reports on Mr Miller, from the pre-sentence report by a probation officer completed in December 2008 and psychologists’ reports prepared variously for the Parole Board and prison services in February 2011, October 2012, November 2012, January 2016 and August 2016. In addition Dr Coebergh had the sentencing notes of the High Court and District Court
sentencings in December 2008, an offender information report on his Parole Board outcomes from May 2016 and offender notes maintained from December 2001 to November 2016.
[22] Dr Coebergh’s analysis of the circumstances of Mr Miller’s relevant offending identified the following aspects:
• Relevant convictions were for eight sexual offences committed during a
17-year period against four female victims aged 6 to 16 years. All the
victims were known to Mr Miller, unrelated to him but in circumstances where he had ongoing dealings with the victims and, mostly, their families.
• The pattern of sexual offending convictions reflected an enduring deviant sexual interest/arousal to pre-pubescent and pubescent female children. The strength of Mr Miller’s sexual compulsivity was seen as evidenced by the way he structured his lifestyle to create and take opportunities to offend (in some cases frequently over several months), the number of his victims, and the relatively brief gap between the end and start of his offending against the three most recent victims.
• Mr Miller facilitated access to his victims by establishing trust with their parents or caregivers. He was seen as having a determination and capacity for deceitfulness and manipulation with his offending against the youngest victims, evidenced by planning to isolate the victims for the purpose of offending.
• The offending had occurred despite Mr Miller having an intimate adult partner and self-reported casual sexual contact with other adult females.
[23] Mr Miller’s continued denial of the offending was relevant on a number of counts. He was assessed as reflecting callousness and a sense of entitlement to meet his deviant sexual needs from voyeurism and sexual touching through to rape without regard for its harmful impact on his victims. In a 2016 psychological report for the Parole Board Mr Miller was reported as stating that his victims, their families, an independent witness and a policeman involved in prosecuting him had conspired to make false sexual abuse allegations against him. He has no empathy or concern for the wellbeing of his victims.
[24] His continued denial of the offending has precluded his undertaking the recommended forms of treatment for someone with sexual recidivism risk classification. Mr Miller did undertake 14 individual treatment sessions in 2015 with a departmental psychologist which was designed to develop a safety plan for avoiding allegations of sexual offending in the future. Dr Coebergh’s opinion was that Mr
Miller’s attitude to his offending substantially limited the progress that might be made with that treatment. He has not been able to participate in specialised intensive group based treatment because of his ongoing denials.
[25] Dr Coebergh acknowledged limits on the research that is available on the efficacy of treating sex offender deniers, and the absence of evidence that forms of treatment deniers can undertake will be effective where they have a high sexual recidivism risk. Because of the limited treatment he has undergone, a safety plan to avoid the circumstances in which he may reoffend is unlikely to be adequate to address the re-emergence of a fuller range of at-risk behaviour. Dr Coebergh concurred with a May 2016 observation to the Parole Board hearing that Mr Miller can be regarded as essentially an untreated sex offender.
[26] When all factors relevant to the ASRS were applied in respect of Mr Miller he was assessed as being in the medium to low-risk category. Applying that static risk predictor placed the reoffending risk at 12 per cent over a 10-year period following release compared to an overall sexual recidivism rate of 13 per cent.
[27] On the VRS:SO Mr Miller was assessed as being in the high-risk category with this probability of sexual reoffending being based on both static and dynamic risk predictors. On that mode of measurement he is placed in a high-risk group in which offenders reoffend in 37.4 per cent of the cases after five years and 51.8 per cent after
10 years from release. Those recidivism rates are in contrast to all sex offenders in a relevant normative sample where 11.9 per cent reoffend after five years and 18.2 per cent after 10 years. Mr Miller’s total VRS:SO score was higher than that scored for
98.5 per cent of the normative sample.
[28] On the psychopathy checklist PCL:SV Mr Miller scored above the average for New Zealand offenders and evidenced a strong indication of psychopathic traits especially for items relating to interpersonal and affective traits, and adult antisocial behaviour. Dr Coebergh cited research that found, across a number of studies, that in general sex offenders who are both psychopathic and sexually deviant are especially likely to reoffend and to do so quickly. Dr Coebergh’s opinion was that Mr Miller’s
rating under the psychopathy personality traits and deviant sexual arousal placed him in a group at higher risk of sexual recidivism.
[29] Dr Coebergh considered whether there were risk mitigating factors available to Mr Miller but none were identified. Because he had been in a relationship at the time of the offending, the existence of an intimate relationship is not considered as likely to be protective for him in limiting the risk of reoffending.
[30] Although for some categories of sexual offender advancing age may reduce the risk of sexual recidivism Dr Coebergh did not consider Mr Miller was in that category because of the extent of his assessed sexual deviancy and demonstrable capacity for deceitfulness and manipulation. It was relevant to this observation that Mr Miller had not participated in any treatment likely to reduce his sexual recidivism risk.
[31] Dr Coebergh’s summary of his assessment was that Mr Miller is at high risk of engaging in relevant sexual offending if identified risk factors remain present, namely deviant sexual preference, sufficient sexual compulsivity to structure his lifestyle to create opportunities to access potential victims, sexual grooming of potential victims and offence planning to facilitate specific offending occasions. This was compounded by the absence of adequate remorse for offending or empathy for victims.
[32] Dr Coebergh’s report opined that should Mr Miller sexually reoffend it will likely involve indecent assault, unlawful sexual connection or rape of one or more pre-pubescent or pubescent young females known to but unrelated to him.
[33] Ms Fitzherbert had Dr Coebergh clarify the approach behind a number of the tests and the conclusions he had recorded in his report. Mr Phelps also cross examined him on the bases for a number of the opinions as to the extent of risk that Mr Miller will represent on release.
Is an intensive monitoring condition warranted?
[34] Given that it is accepted that Mr Miller will be subject to an ESO so that the pre-requisite for considering the additional restriction is made out, it is appropriate to
deal first with the question of whether the first 12 months of Mr Miller’s release will be subject to an intensive monitoring condition.
[35] Dr Coebergh’s overall assessment suggests that such a condition is warranted in Mr Miller’s case. Despite Mr Miller reaching middle-age his denial of the offending, the nature of the offending and the assessed nature of his deviancy characterises Mr Miller as an offender who ought to be intensively monitored, and indeed who might be helped in a slower transition than would otherwise occur from prison to living in the community.
[36] On the other hand, Mr Phelps’s considerations, including the following, countered against this being an appropriate case for intensive monitoring:
•Mr Miller does not have an intellectual disability or mental illness that would impede his ability to function in the community;
• he was able to live in the community between October 1990 and
February 2006 without, presumably, offending sexually in any way;
•Mr Miller’s record suggests he complies with conditions and sanctions imposed by the Court, having complied with sentences of periodic detention and community work in the past; and
•although Mr Miller has not undertaken rehabilitative programmes for child sex offenders, he did have counselling with a psychologist to assist in identifying the high-risk situations and the development of a relapse prevention or release plan.
[37] As to the first of these the state of Mr Miller’s mental health in other respects does not materially lessen the risks in managing his behaviour post-release.
[38] As to the second this point overlooked a complaint of further offending in
2004. Although that complaint did not lead to a conviction, I accept Ms Fitzherbert’s
submission that it is an indication of potentially troubling conduct and prevents
Mr Miller claiming that he was free of allegations of such conduct for 16 years.
[39] As to the third Mr Miller’s capacity to comply with restrictions in other respects does not necessarily lessen the risk represented by his sexually deviant behaviour.
[40] As to the fourth factor little weight can be given to Mr Miller’s consideration of a release plan when, in denying the offending, he necessarily denies a proclivity to commit the type of offences that create the risk to young girls.
[41] In addition to these factors Mr Phelps submitted that for some considerable time, Mr Miller has worked with his case manager and psychologist on plans for release into Salvation Army supported accommodation in Hawke’s Bay. That is the area in which he is most likely to have other support on his release. However, if the intensive monitoring condition is imposed, then he would be relocated into a community away from the Hawke’s Bay and arguably that may impede the transition that he might otherwise make more successfully.
[42] There is no suggestion that at least some of the support arrangements would not still be available to Mr Miller at the end of a period where he is intensively monitored. The prospect of arrangements such as Mr Phelps describes suggests that
Mr Miller may cope better than would otherwise be the case on release, but they do not lessen the justification for the more intensive regime of monitoring that is sought.
[43] A further point raised by Mr Phelps was that Mr Miller will automatically be registered on the Child Sex Offender Register and that that factor improves the prospect of monitoring his behaviour to an extent that intensive monitoring would not be warranted. Ms Fitzherbert’s rejoinder is that the Register is aimed at community protection at a general level and is not targeted at reducing particular risks posed by potentially recidivist offenders.
[44] One of the purposes of the Child Sex Offender Register is to allow police to monitor child sex offenders in the community, given the risk posed by those offenders.
It is not tailored to an offender because all registered offenders must report the same information. It is, however, specific to each offender in that it monitors each of them carefully across a significant number of factors. The intention is that, by monitoring reporting obligations, the risk posed to the community is reduced. Such a reduction is necessarily achieved by reducing the risk of reoffending posed by each individual through monitoring, for instance, his or her whereabouts, place of work, social media activity, and association with children.4
[45] Despite those protective factors, I accept the kind of monitoring envisaged by the Register is insufficient to address the particular risk posed by and needs of Mr Miller at the point of his release. That risk is more appropriately managed by way of an intensive supervision order.
[46] Accepting that a high standard has to be made out, the evidence of Mr Miller’s proclivities justifies it. I accordingly make the order for intensive monitoring in terms detailed at the end of this judgment.
Length of ESO
[47] The Department has sought the maximum 10-year term for the ESO. It does so on the basis of the risk as currently assessed being projected forward constantly because of no relevant factor that would justify treating the nature of the risk as changing.
[48] Mr Phelps submitted that an ESO for 10 years would be disproportionate to the risk posed by Mr Miller and that no longer than six years was warranted. He is now
55 years old with his last sexual offending having occurred when he was 45. However Dr Coebergh’s evidence that those who have committed the type of child sexual offending as Mr Miller has been convicted of and who remain deniers statistically do not present reduced risk as they age. Mr Phelps urged that increasing age should still be seen as a protective factor.
[49] Reduction in risk can arguably be expected where Mr Miller will be monitored in any event for a significant time under the ESO, and permanently as a condition of being on the Child Sex Offender Register. The circumstances of his prior offending were all in situations where he ingratiated himself with caregivers of young children to develop trust that was then abused. Those situations are not as likely to be available to him post-release when he is on the Child Sex Offender Register.
[50] Further Mr Miller has behaved well in prison and there are no suggestions of alcohol or drug issues that might limit his inhibitions and potentially increase his risk of reoffending.
[51] Although counsel cited numerous cases as analogies for the appropriate length of the ESO to be ordered in Mr Miller’s case, all of them depend on individual combinations of circumstances of the offender involved. Mr Phelps placed particular reliance on the case of Alinizi in which the Court of Appeal allowed an appeal by the Chief Executive from a High Court refusal to order an ESO.5 Mr Alinizi had been sentenced to eight years’ imprisonment for raping and kidnapping a 15-year-old girl. Whilst in prison his earlier offending against the nine-year-old daughter of a former partner came to light. He was convicted on two charges of doing an indecent act on that child, being sentenced to two years’ imprisonment to be served cumulatively on the longer sentence.
[52] The High Court had declined to order an ESO on the basis of an absence of evidence at the time of assessment that Mr Alinizi did not presently display an intense drive, desire or urge to commit a relevant sexual offence. The Court of Appeal approached that requirement differently and were satisfied that the grounds were made out. On the length of the ESO to be imposed, the Court of Appeal observed:
[39] We have carefully considered the alternative courses of making an order of 10 years duration, recognising that it is open to Mr Alinizi to apply at an earlier time for cancellation, or an order of lesser duration in relation to which the Chief Executive could make an application for extension at the appropriate time.
[53] The Court of Appeal preferred the latter option. That course is open because s 107F(1)(b) of the Parole Act authorises the Chief Executive to make an application for a further ESO in respect of an offender already subject to one at any time before the existing ESO expires.
[54] In Mr Alinizi’s case, a psychologist’s professional opinion was that the maximum period of 10 years was not necessarily indicated. The Court considered a period of six years was adequate to develop a safety plan with protective factors but, if further application was warranted, it could be brought at the end of that period.
[55] Mr Phelps submitted that the offending in that case and the extent of risk presented by Mr Alinizi was the same, if not worse, than the risk posed by Mr Miller. It was on that basis that he submitted an ESO of no more than six years would be adequate in the present case.
[56] I am not persuaded that a ranking of the relative seriousness and nature of the risks posed by Mr Miller when compared with others should be overly influential in setting the length of an ESO in this case. It is evidence of Mr Miller’s individual level of risk, seriousness of harm he may cause and duration of his risk that is relevant in an assessment under s 107I(5).
[57] Dr Coebergh noted that denial itself does not correlate directly with increased or decreased levels of risk, because that factor is common across the spectrum of offenders. It may, however, impact on whether an offender will seek assistance or treatment. Dr Coebergh further stated that risk in deniers does not necessarily diminish with age. Where an offender has a strongly established sexual preference and deviancy, as is the case with Mr Miller, age may not be a protective factor. In those circumstances, Dr Coebergh stated it is possible a risk of offending may increase with age as it potentially facilitates access to victims.
[58] I am not adequately informed to quantify the extent of the difference of risk
Mr Miller will present in six years’ time, as compared with the level of that risk in 10 years’ time. He will at those points be respectively 61 and 65. Were he not a denier, the cohort of such offenders who are prepared to seek help for their sexual deviancy
would enjoy a reduction in the risk they pose between those ages. Without anticipating that Mr Miller will, post-release, cease to be a denier of his offending behaviour, I am inclined to place a small measure of weight on the prospect that, post-60, the level of risk he poses may reduce to some extent.
[59] I am mindful that the Child Sex Offender Register, the relevant legislative provisions of which were not in force at the time the Court of Appeal heard Alinizi, may be relevant to the assessment of the level of risk posed by Mr Miller. As noted above, the purpose of the Register is to mitigate the risk posed to the community by offenders in exactly Mr Miller’s position. It facilitates monitoring of an offender across a range of factors over an extended period; in Mr Miller’s case, for life. Monitoring those factors would reduce Mr Miller’s ability to structure his life such that would enable him to offend in a manner similar to his prior offending. This acts to reduce the level of his risk irrespective of his denial, and irrespective of whether his risk decreases with age.
[60] With those two matters in mind and on the basis of the evidence before me, I am not prepared to accept that Mr Miller will maintain the currently assessed level of risk indefinitely into the future so as to justify a 10 year ESO. I accordingly set the period of the ESO at eight years, in the knowledge that should the risk remain at the level Dr Coebergh is presently able to project, the Department will be in a position to make further application.
Terms of orders
[61] Orders to effect this outcome are as follows:
(a) I impose an Extended Supervision Order in respect of Mr Miller for a period of eight years from the date of his release.
(b)I direct that the Parole Board is to impose an intensive monitoring condition in respect of Mr Miller pursuant to ss 107IAB and 107AC of the Act for a period of 12 months from the date of his release.
(c) Pending imposition of that order by the Parole Board I direct on an interim basis that Mr Miller is to be subject to the following conditions:
(i)to be subject to intensive monitoring and to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the Chief Executive, to undertake person-to-person monitoring;
(ii)to undertake, engage in and complete a reintegration programme administered by a programme provider between the hours of 8:00 am to 8:00 pm each day of the week, as approved by a Probation Officer and abide by the rules of the programme to the satisfaction of the Probation Officer;
(iii)to abide by the residency agreement of the approved residential programme to the satisfaction of the Probation Officer and Service Provider; and
(iv)to be subject to partial residential restrictions as per s 33(2)(c)(i) of the Act at his approved residence between the hours of 8:00 pm to 8:00 am each day of the week.
Dobson J
Solicitors:
Luke Cunningham & Clere
M Phelps, Barrister
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