Department of Corrections v Nepia

[2014] NZHC 1448

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-4 [2014] NZHC 1448

BETWEEN

DEPARTMENT OF CORRECTIONS

Applicant

AND

ROBERT NEPIA Respondent

Hearing:	25 June 2014
Counsel:	R B Annandale with J E Tarrant for Applicant A M Beveridge for Respondent
Oral Judgment:	25 June 2014

ORAL JUDGMENT OF THE HON JUSTICE KÓS

[1]      Mr Nepia was sentenced in the High Court on 23 July 2004 to eight years and six months’ imprisonment on the following 19 charges: rape (x3), sexual violation by rape (x1), sexual violation by unlawful sexual connection (x3), indecent assault on a girl aged under 12 years (x6), indecent assault on a girl between 12 and 16 years (x2), indecent assault on a boy under the age of 12 years (x1) and inducing an indecent act on a boy aged 12 (x3).

[2]      Those charges involved six victims.  The oldest was 13 and the youngest 5.

The offending was, as the sentencing Judge, Cooper J said “wicked”.

[3]      Mr Nepia was then sentenced on 29 April 2011 in the District Court on a further nine charges to which he confessed following a treatment programme for sexual offenders, the Kia Marama programme, which he undertook while in prison. These charges were indecent assault on a boy under 12 (x4), indecent assault on a female under 12 (x1), sexual violation by unlawful sexual connection with a female

between 12 and 16 (x3) and unlawful detention (x1).

DEPARTMENT OF CORRECTIONS v NEPIA [2014] NZHC 1448 [25 June 2014]

[4]      These victims, again six in number, were aged between 5 and 7 years of age.

[5]      He received sentences of one year and nine months’ imprisonment on each of those nine charges cumulative on the High Court sentence he was already serving. Those sentenced included a substantial discount for remorse, demonstrated by the confession made in the knowledge that the consequence would be further prison time.

[6]      Mr Nepia was released from prison in August 2011, but he then breached his release conditions on two occasions.   The first when he stayed overnight at an address that was not his approved address.  The second when he associated with a boy under 16 years of age.  Mr Nepia was recalled to prison.  A further two month cumulative sentence was imposed for those two breaches.

[7]      Mr Nepia was again released from prison in January 2013.  He was recalled to prison for having a three year old female residing at his residence.  Mr Nepia says that he allowed the girl and her father, an old friend from prison, to stay because they had nowhere to go.  A further two months’ sentence of imprisonment was imposed for that breach.

[8]      The expiry date for Mr Nepia’s sentences is 20 July 2014.  The Department of Corrections now applies for the imposition of a ten year extended supervision order (ESO) upon Mr Nepia’s release. The application is opposed.

Factual background

[9]      Mr Nepia’s  original  offending  occurred  during  the period  1979  to  1990. During this period he was between 15 and 26 years of age.   The later offending continued until 1996, when he would have been 32 years of age. All of the offending is related.  Mr Nepia has now admitted, again in the course of the sexual offending treatment programme that he has received in prison, that there may have been as many as 32 victims of his sexual offending in all.

[10]     The victims of his offending were all relatives, family friends, neighbours, children he babysat and the siblings of some of those victims.  The offending was

opportunistic.  It occurred in places he was unlikely to get caught in, such as under the house, in the toilet or in his parents’ bedroom.   On some occasions Mr Nepia restrained the victims or taped their mouths so that they could not call for help.  The offending was of various kinds and was  a gross intrusion upon the liberty and innocence of his victims.  In one instance, where he raped a five year old victim, she had been staying at Mr Nepia’s family home during the school holidays.  Mr Nepia threatened her that if she told anyone he would kill her parents and her nanny.

Relevant statutory provisions

[11]     The  Parole  Act  2002  contains  the  statutory  provisions  governing  the imposition  of ESOs.   They may be imposed against  eligible offenders,  specific individuals who received a finite prison term for a relevant offence.   Relevant offences include sexual violation where the victim was under 16 at the time of the offence and abduction for the purposes of sexual connection where the victim was under 16.  The Act empowers the Chief Executive of the Department to apply for an ESO in respect of such offenders.  An application must be made at any time before the expiry date of the sentence to which the offender is subject, or the date on which the offender ceases to be subject to any release conditions.

[12]     The Court is required to consider a report from a suitable health assessor.  In this case the Court has a report from a registered psychologist, Ms Waterton.  And a second  report  has  been  provided,  through  Mr  Nepia’s  counsel,  from  another registered psychologist, Mr Lascelles.

[13]     The Court may make an ESO if it is satisfied having considered the matters and the health assessors’ reports that the offender is likely to commit any of the relevant offences referred to under s 107B(2) upon ceasing to be an eligible offender. The term of the order must reflect the minimum period required for the purposes of the safety of the community in light of the risk posed by the offender, the seriousness of potential harm caused to victims and the duration of the risk.   ESOs may not exceed ten years.

Preliminary considerations

[14]     Mr Nepia has committed relevant offences under s 107B of the Act.   It is accepted by Mrs Beveridge who appeared for Mr Nepia this morning, that he is an eligible offender. The application has been made in due time and the reporting meets the relevant statutory requirements.

Summary of the psychological reports

[15]     As I have mentioned already there are two psychological reports available for the Court to consider. The first from Ms Waterton, the second from Mr Lascelles.

Potential to reoffend

[16]     Ms Waterton’s report considers Mr Nepia has  a high risk of committing further relevant sexual offences upon his release into the community.   On the Automated Sexual Recidivism Scale (ASRS) Mr Nepia is assessed as being in the high risk category.  Individuals scoring at this level go on to commit further relevant sexual offences of rape approximately four times the average sexual offending rate after five years and three times the average rate after ten years.   On the STABLE

2007 Scale Mr Nepia has been assessed as being in the moderate risk group.  This scale assesses dynamic risk factors likely to increase or decrease the likelihood of sexual recidivism.  Items identified as problematic for Mr Nepia include an absence of significant pro-social influences, limited capacity for relationship stability, general social rejection, limited problem-solving skills, negative emotionality, deviant sexual interests, sexual preoccupation and limited cooperation with some aspects of supervision.

[17]     Mr Lascelles’ report noted Mr Nepia had been assessed as medium to high risk on ASRS earlier in his sentence.   The increase in risk profile to high was probably  due  to  the  addition  of  more  recent  convictions  for  historical  sexual offences.   Mr Lascelles says that the ASRS technique is insensitive to mitigating events of age and is unable to consider that Mr Nepia is moving into an age range be associated with lower recidivism rates.  In addition ASRS has counted Mr Nepia’s

second set of sexual convictions as equivalent to recidivism despite the offences occurring during the same period as the original offending.

[18]     Ultimately,   however,   Mr   Lascelles   accepts   that   Mr   Nepia’s   risk   of reoffending is higher than the average sexual offender.  He says if Mr Nepia were to reoffend it is likely to be preceded by a period of significant stress, resumption of substance abuse, conflict or dissolution of his intimate relationship.   Mr Lascelles says he is unable to predict with accurate certainty whether Mr Nepia’s risk would reduce significantly at a particular point in time over the next ten years.  He accepts that  is  a possibility due  to  the effects  of  age  on  libido.    He is  concerned  that “challenging life events” may trigger a relapse into former patterns of behaviour in coping.  Mr Lascelles concludes:

At this point in time I do not have sufficient confidence that Mr Nepia will be able to [control his impulses] consistently over the medium term.  This precludes being able to suggest that his risk will reduce below the required threshold at any specific point in the next ten years.

Nature of any likely sexual offending, including the age and sex of likely victims

[19]     Ms Waterton considers that if Mr Nepia is to commit further offences in the future his offending is likely to be of a sexual nature against pre-pubescent males or females, or pubescent females.   His likely victims will be known to him through interfamilial relationships, family friends or neighbours.   She considers any future offending will likely be opportunistic and may occur while he has unsupervised access to a potential victim, or where he perceives an opportunity to remove a victim to secluded location.   The offending would likely involve use of threats, forced attention, explicit sexual activity or possible intoxication.   Mr Lascelles notes that any further sexual offending may carry high potential psychological and physical harm to victims.

Offender’s ability to control sexual impulses

[20]     Ms Waterton considers Mr Nepia’s sexual offending is indicative of a poor ability to control his sexual impulses.   Although Mr Nepia has developed a satisfactory understanding of his offending, he has shown poor insight in the implementation of his relapse prevention plan.  He has continued to place himself in

high risk situations.  That is particularly instanced by the two occasions where he was released from prison and subsequently recalled for breaching parole conditions.

[21]     Mr Lascelles says there is no further evidence of a deviant sexual interest but he acknowledges  that  this  relies  on  self-reporting as  opposed  to  formal  testing. Mr Nepia still has a high sexual drive.  On release from prison he has managed this with consensual sexual activity with his partner and without further offending.

Offender’s predilection and proclivity for sexual offending

[22]     Mr Nepia’s conviction history is considerable.   He has been convicted of sexual offences in relation to 12 victims but there are perhaps as many as 20 more. Ms Waterton considers he has a general proclivity of predilection for child sexual offending given his extended history of sexual offending and the large number of child victims.  She considers that there is insufficient evidence that this has abated.

[23]     Mr Lascelles  considers  Mr  Nepia  has  chronic  stable  interests  in  sexual contact with children.  Mr Nepia self-reports that his interest abated abruptly during treatment.  Mr Lascelles considers it is unlikely that his enduring interest would have ceased as abruptly as Mr Nepia claims.   Nor that it would completely cease even where treatment is considered successful.

Offender’s acceptance of responsibility and remorse of past offending

[24]     Mr  Nepia  has  accepted  responsibility  for  his  offending.    That  is  best manifested in his unprompted confession of further offending during treatment and considerable credit is due to Mr Nepia for that course.  Mr Nepia has acknowledged his victims’ vulnerability, and that they are likely to have experienced fear and trust issues in the remainder of their lives.

[25]     Ms Waterton notes Mr Nepia’s expression of regret for the harm he has caused his victims.  Mr Lascelles considers that Mr Nepia’s disclosure to police in

2011 demonstrates a high level of remorse.  Mr Nepia accepts that his past behaviour has  been  abhorrent  and  it  distresses  him  that  other  people  will  see  him  as  an abhorrent offender.

[26]     There is evidence however that Mr Nepia is reluctant to accept restrictions on his freedom to associate with children because he believes he is no longer at risk.  It has been said by both psychologists, and it has to be said by me, that Mr Nepia’s failure to accept a need to avoid unsupervised contact with children detracts from his acceptance of responsibility for his actions.

Other relevant factors

[27]     As  mentioned  already,  during  Mr  Nepia’s  treatment  at  the  Kia  Marama special treatment unit for child sexual offenders he made a voluntary confession of further  criminal  offending.    That  should  be  regarded  as  a  significant  treatment success  and,  as  I have  said,  it  is  a  matter  for which  Mr Nepia should  receive considerable credit.  I should note that that credit was at least in part extended to him in the sentencing discount given to him by the sentencing Judge in the District Court in 2011.

[28]     Both  health  assessors  have  concerns  about  Mr  Nepia’s  apparent  lack  of insight into his offending, notwithstanding his acceptance of responsibility.  He has not formulated a comprehensive release plan to avoid placing himself in high risk situations.  He is somewhat dismissive of the need for on-going management of his risk.  For example he told Mr Lascelles that he thought he should receive funding to work with children and youths who have experienced sexual abuse. As Mr Lascelles notes, he has had difficulty understanding why this would be viewed as highly inappropriate.

Recommendations

[29]     Ms Waterton concludes that Mr Nepia poses a high risk of recidivism upon release.  The report states that individuals demonstrating Mr Nepia’s assessed risk level maintain a stable risk for a lengthy time.   The risk is likely to remain for a period of over ten years.   She recommends the imposition of an ESO for the maximum term of ten years.

[30]     Mr Lascelles  concludes that Mr Nepia poses a moderate to high risk of recidivism.  Although he considers it problematic to make long term forecasts with

any degree of certainty, he cannot say that Mr Nepia’s risk will reduce over the ten years. Although he recognises that is possible, in part because of Mr Nepia’s age.

Is an ESO appropriate in this case?

[31]     Having taken the psychologists’ recommendations into account, it remains for the Court to determine whether an individual is likely to commit a relevant sexual offence under the Act upon release.  In Peta1 the Court of Appeal has noted that the risk of offending must be real, on-going and one that cannot be ignored having regard to the statutory nature and gravity of the likely offending.

[32]     The Department submits that an ESO is necessary, arguing Mr Nepia is likely to commit a relevant offence following his release from prison.  It points to his recall on two occasions to prison for prohibited association with children under 16 years of age.  The term of the ESO should be for ten years.  Neither psychologist could find a basis for expressing confidence that the risk of recidivism would reduce materially within the immediate ten year period.

[33]     For Mr Nepia, Mrs Beveridge acknowledges that he is an eligible offender. She  points  to  the  significance  of  his  confession  to  further  sexual  offending  as tangible evidence of remorse, and as a basis on which the Court might form the view that recidivism was relatively less likely.   I note other points Mrs Beveridge has made, including those at paragraphs 14, 16, 17 and 21 of her written submissions.

[34]     But in this case I consider an ESO must be imposed.

[35]     First, there is a high, or at least moderate to high, risk of relevant sexual offending reoccurring within the next ten years.  The risk is assessed as relatively stable.  Mr Nepia has shown a poor ability to avoid high risk situations.  On the basis of the evidence, I must form the view he is likely still to have a predilection or

proclivity for sexual offending against children.

1      R v Peta [2007] 2 NZLR 627.

[36]     Secondly, Mr Nepia has made treatment gains, most significantly when he made his unprompted confession to further sexual offending.   But there is in the reporting at least a strain suggesting that Mr Nepia now sees himself as a victim. Regardless of the causes of his own offending, that perspective demonstrates a very significant lack of insight on his part.

[37]     Thirdly, it seems to me that Mr Lascelles is right when he says that such confidence as the Court may have that Mr Nepia can manage his proclivity depends on a continuing stable relationship with his present partner.  If that relationship were to end, or if Mr Nepia were to become prone again to substance abuse, then the stable conditions that at the moment are holding him in check may no longer apply. In that situation there is, I think, a real prospect of disaster.  Not just for a further victim, but for Mr Nepia himself.

[38]     In these circumstances, it seems to me that the better course, in the interests of the public but also of Mr Nepia himself, is to impose an ESO and to see how he goes.

[39]     As Mr Nepia is aware he can apply to vary or order the ESO.   Given the relative  success  of  his  treatment  programme  in  prison,  acknowledgment  of  the effects of his crimes, and with a satisfactory track history behind him of positive re- engagement in the community, I would expect the Court to receive favourably an application for variation or perhaps cancellation.  With a genuine track record behind him of positive reintegration, Mr Nepia must be a decent candidate for such application.  But the proof must be in his actual integration into the community, and I am in no position to form a view about that now.

Appropriate length of the ESO

[40]     In R v Peta the Court of Appeal noted that it is necessary for a Judge to determine the appropriate length of an ESO against the statutory criteria in s 107I(5) of the Parole Act in a separate exercise from the decision to impose the order.  This section emphasises the need to impose an order for the minimum period required for the purposes of the safety of the community in light of the level of risk posed by the

offender, the seriousness of the harm that might be caused to a victim and the likely duration of the risk.

[41]     Cases where an ESO of ten years have been ordered typically involve a recurring  pattern  of  sexual  offending.     For  example  the  individuals  in  Chief Executive of the Department of Corrections v Webster2 and the Chief Executive of the Department of Corrections v Subritzky3  offended against multiple victims over a

period of time.   In Barr v Chief Executive of the Department of Corrections4  the

respondent had offended against two victims within a short period of time but in a similar way.   In that case a four year ESO was upheld by the Court of Appeal, although it appears to have been considered light.   In my own decision in Chief Executive  of  the  Department  of  Corrections  v  Livingstone5    earlier  this  year, Mr Livingstone  had  been  convicted  of  a  single  instance  of  sexual  offending, although very bad offending.  Because of its distinctive singularity it was accepted that a term of less than ten years should be imposed, and an ESO of seven years was imposed.

[42]    In this case, faced with an at least moderate, and perhaps high risk of reoffending, a proclivity for sexual offending against very young children where the harm that will be caused to them would be high, or very high, and the psychologists’ assessment  that  there  is  no  basis  for  assuming  other  than,  at  present,  a  stable continued proclivity, I consider the appropriate term of an ESO here is ten years.

[43]     Now, I repeat, Mr Nepia deserves credit for his confession in prison and the fact that he has completed the Kia Marama treatment programme.  I repeat what I have said already.  Given a satisfactory number of years (and I would have thought that would need to be five) in which he has not reoffended, has not breached his conditions and has reintegrated satisfactorily back into the community, then this would be an appropriate case for the Court to receive an application to vary or cancel

the order that I have just imposed.

2      Chief Executive of the Department of Corrections v Webster HC Auckland [2012] NZHC.

3      Chief Executive of the Department of Corrections v Subritzky HC Auckland CRI-2004-404-98

4      Barr v Chief Executive of the Department of Corrections CA60/09, 20 November 2006.

5      Chief Executive of the Department of Corrections v Livingstone [2014] NZHC 138.

[44]     But in the meantime, I must impose the order that has been sought, and I do so, with effect from 20 July 2014.  The conditions that will apply are those set out in s 107JA of the Act.

Stephen Kós J

Solicitors:

Almao Douch, Hamilton for Applicant