Department of Corrections v Puketapu
[2017] NZHC 913
•9 May 2017
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CRI-2016-485-000093
[2017] NZHC 913
BETWEEN DEPARTMENT OF CORRECTIONS
Applicant
AND
PATRICK PUKETAPU
Respondent
Hearing: 3 May 2017 Counsel:
E M Light for Applicant
F J Handy and J M Fyfe for Respondent
Judgment:
9 May 2017
JUDGMENT OF COLLINS J
Introduction
[1] The issues addressed in this judgment are encapsulated in the following question:
Should a new extended supervision order (ESO) be imposed on Mr Puketapu, pursuant to s 107F of the Parole Act 2002 (the Act) so as to enable an intensive monitoring condition (IMC) to be also imposed upon him by the Parole Board pursuant to s 107IAB(1) of the Act?
[2] Mr Puketapu is already subject to an ESO which expires on 25 May 2024. The principal issue in the present case is whether an IMC should be put in place. As I explain in paragraph [11], this can only occur at the commencement of an ESO.1 Thus, if an IMC is to be put in place the current ESO has to be quashed and replaced with a new ESO.2
1 Parole Act 2002, s 107K(3)(ba).
2 Chief Executive of the Department of Corrections v Ranui [2016] NZHC 1174; Chief Executive, New Zealand Department of Corrections v Aima’asu [2016] NZHC 603 and Chief Executive
DEPARTMENT OF CORRECTIONS v PUKETAPU [2017] NZHC 913 [9 May 2017]
[3] For completeness, I record that although Mr Puketapu was sentenced in the District Court, an order directing the Parole Board to impose an IMC can only be made by the High Court.3
[4] In order to explain why I have decided to decline the Department’s applications I shall first provide an overview of the ESO and IMC regimes. I shall then explain Mr Puketapu’s circumstances and the evidence that has been presented to me. Finally, under the heading “Analysis” I will set out the reasons for my conclusions.
The ESO and IMC regimes
ESO regime
[5] The ESO regime came into force on 7 July 2004. It was a legislative response to community concerns about the possibility of defendants being released from finite sentences of imprisonment while still posing serious risks of sexual offending against children and young persons.4 The Act was amended with effect from 12 December 2014 by the Parole (Extended Supervision Orders) Amendment Act 2014. The purpose of an ESO has now been widened to deal with all risks of future serious sexual and violent offending. In the case of sexual offending, an ESO may be imposed if “the offender has, or has had, a pervasive pattern of serious sexual … offending” and if “there is a high risk that the offender will in future commit a relevant sexual offence”.5
[6] In the case of violent offending, an ESO may be imposed if “the offender has, or has had, a pervasive pattern of serious … violent offending” and if “there is a very high risk that the offender will in future commit a relevant violent offence”.6
[7] Every application for an ESO must be accompanied by at least one report by a health assessor which must address certain risk factors.7 Section 107IAA(1) of the
Department of Corrections v Brown [2016] NZHC 1038.
3 Parole Act 2002, s 107IAB(2).
4 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [5]; Chief Executive of the Department of Corrections v Ranui, above n 2, at [3].
5 Parole Act 2002, s 107I(2).
6 Section 107I(2).
7 Section 107F(2A):
(2A) Every health assessor’s report must address one or both of the following questions:
(a)whether—
Act sets out the matters the Court must be satisfied of when determining if there is a high risk the offender will commit further relevant sexual offences. That subsection states:8
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.
...
[8] An ESO “must be [for] the minimum period required for the purposes of the safety of the community”, having regard to the level of the risk posed by the offender, the seriousness of the harm that might be caused to victims and the likely duration of the risk.9 An ESO must not be for a term longer than 10 years.10
[9] In Chief Executive of the Department of Corrections v Wrigley, Heath J observed that the imposition of an ESO “has the potential to impose major restrictions
(i) the offender displays each of the traits and behavioural characteristics specified in section 107IAA(1); and
(ii) there is a high risk that the offender will in future commit a relevant sexual offence:
...
8 See generally, Chief Executive, Department of Corrections v Alinizi [2006] NZCA 468.
9 Parole Act 2002, s 107I(5).
10 Section 107I(4).
on a person’s freedom of movement and association”.11 The Court must therefore be vigilant to ensure that the statutory criteria are fully met before imposing an ESO.
IMC regime
[10] The 2014 amendments also enabled the High Court to impose an IMC. For present purposes it is sufficient to explain the key elements of ss 107IAB and 107IAC of the Act.
[11] Section 107IAB of the Act authorises the Chief Executive of the Department to apply to the High Court for an order requiring the Parole Board to impose an IMC on an offender in conjunction with an ESO application. Correspondingly, s 107IAC(1) confers jurisdiction on the High Court to make an order requiring the Parole Board to impose an IMC on a person who is the subject of an ESO.
[12] An IMC requires the person in respect of whom the order is made “… to submit to being accompanied and monitored, for up to 24 hours a day … by a person authorised … to undertake person-to-person monitoring”.12 An IMC must not be longer than 12 months and can only be made once, even if the person in question has been the subject of multiple ESOs.13
[13] An IMC places enormous restraints upon the affected person. Such an order involves significant curtailment of the person’s physical liberty and it also encroaches in profound ways upon their privacy, autonomy and personal dignity. In Department of Corrections v Conroy, Cull J observed:14
Just as an ESO has been held to be a penalty, a condition of intensive monitoring is an additional penalty, because the offender is transferred to a facility in prison grounds and is subject to 24 hours a day person-to-person accompaniment and monitoring. It is … comparable to a prison sentence.
[14] While sight should not be lost of the rehabilitative goals of an IMC, clearly such an order is an extreme measure that should rarely be invoked.
11 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [36].
12 Parole Act 2002, s 107IAC(2).
13 Section 107IAC(3) and (5).
14 Department of Corrections v Conroy [2016] NZHC 2901 at [59]; referring to Chief Executive of the Department of Corrections v Martin [2016] NZHC 1060 at [20].
[15] The Act does not set out any criteria or test for imposing an IMC. I have taken into account the additional penalty factor of an IMC and the statutory provisions relating to an IMC. In my assessment, the Parole Board should only be directed to impose an IMC in cases where the Department demonstrates that an ESO will not adequately protect the community and achieve the rehabilitative objectives of an IMC.
Mr Puketapu
[16] Mr Puketapu was born in February 1976. He has 51 convictions, most of which are for dishonesty, driving and breaching court and related orders.
[17] Mr Puketapu has an extremely low level of intellectual functioning. An assessment undertaken in December 2012, using the Wechsler Adult Intelligence Scale-IV (WAIS-IV), found Mr Puketapu has an IQ in the range of 57 to 65. This extremely low level of IQ partially satisfies the definition of intellectual disability in s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. Despite his long history of involvement with the criminal justice system, and notwithstanding his low IQ, Mr Puketapu does not appear to have ever been assessed under the Criminal Procedure (Mentally Impaired Persons) Act 2003. Mr Puketapu also has a history of substance abuse which appears to have precipitated many of his offences.
[18] Mr Puketapu has been twice sentenced to imprisonment for violent offending. The first of these sentences was imposed in 1995 for aggravated robbery. He was sentenced to seven months’ imprisonment on that occasion. The second was in 2002 when Mr Puketapu was sentenced to three years and six months’ imprisonment for wounding with intent to injure.
[19] The applications before me have been primarily triggered by Mr Puketapu’s history of sexual offending. That history can be summarised in the following way:
(1)On 22 September 1998, Mr Puketapu was sentenced to one year and nine months’ imprisonment on two charges of indecent assault involving two victims. The first victim was aged 18. Mr Puketapu was 22 years old at the time. The sentencing notes record Mr Puketapu was
found lying beside the first victim on her bed fondling her upper body. She was drunk and asleep. When the victim awoke Mr Puketapu put a knife to her throat and threatened to kill her if she moved. The following day, the second victim, aged 19 caught Mr Puketapu rummaging through her possessions. Mr Puketapu pushed the second victim onto a bed, prised open her legs and fondled her genitalia through her clothing. The victim screamed, fought back and managed to get away from him.
(2)In 2007, Mr Puketapu was found guilty of indecently assaulting a 10 year old girl. The sentencing notes state Mr Puketapu knew this victim and entered her room when he was intoxicated and fondled her genitalia over her clothing. He was sentenced to 12 months’ imprisonment. An ESO was imposed on Mr Puketapu by the District Court at Palmerston North on 25 October 2007 for this offending. The ESO came into force on 25 November 2007 and was for 10 years. Mr Puketapu has been convicted four times for breaching this ESO.
(3)On 7 July 2011, Mr Puketapu was sentenced to five years and 10 months’ imprisonment in relation to a charge of sexual violation by rape. The ESO was suspended while Mr Puketapu served this prison sentence. This offending occurred less than a month after Mr Puketapu had been released from custody in relation to unrelated matters. The victim on this occasion was 15 years old and particularly vulnerable. She met Mr Puketapu in the foyer of a hospital. Mr Puketapu persuaded her to go to his home where they smoked cannabis. The victim fell asleep, when she woke she found her jeans had been removed and Mr Puketapu was raping her. Mr Puketapu left the victim but returned soon after and committed further acts of sexual violation against her.
[20] Mr Puketapu was released from prison on 11 August 2016 and immediately became subject to the conditions of the ESO that had been put in place in October
2007. Mr Puketapu is subject to electronic monitoring and he has fully complied with the conditions of his ESO since his release.
[21] Mr Riley, a registered psychologist who assessed Mr Puketapu at the request of his lawyers in April 2017, has explained that since being released from prison Mr Puketapu has received the benefit of supported accommodation from the Salvation Army. That accommodation has been in Upper Hutt, Napier and more recently in Porirua. Mr Riley notes that during his earlier periods in the community Mr Puketapu “led a relatively transient lifestyle, often necessitated by difficulties when sharing accommodation with others”.
[22] On 21 March 2017, the Department applied to the Parole Board to vary the terms of Mr Puketapu’s ESO so as to require him to undergo a reintegration programme in a supervised housing area that forms part of the Spring Hill Corrections Facility near Hamilton (Spring Hill Village). That application was heard on 13 April 2017. It appears to have been triggered by a concern that Mr Puketapu’s accommodation was thought to be coming to an end on 3 May 2017. When the Salvation Army confirmed Mr Puketapu’s accommodation could be extended to 3 August 2017 the Department withdrew its application. In its decision the Parole Board agreed with a submission made by Ms Fyfe, one of Mr Puketapu’s lawyers, that the application “was no more than a backdoor means of achieving an intensive monitoring order” and that the Department had not demonstrated that it was necessary for Mr Puketapu to engage in the reintegration programmes at Spring Hill Village.
Evidence
Mr Gibbs
[23] Mr Gibbs, the acting manager of high risk response in the Department, has sworn an affidavit in support of the current applications in which he explains it aims to place Mr Puketapu in Spring Hill Village. The Anglican Action Mission Trust is contracted by the Department to run intensive monitoring programmes at the Spring Hill Village.
[24] If Mr Puketapu becomes the subject of an IMC he would live at Spring Hill Village, at least for an initial period, and be monitored 24 hours a day. There is scope for Mr Puketapu to leave the site, with agency staff, in order to engage in programmes and activities. Mr Gibbs says an IMC would not involve Mr Puketapu being confined in a single location. An IMC would mean however, that Mr Puketapu would be accompanied wherever he went.
[25]Mr Gibbs explains that should Mr Puketapu become subject to an IMC:15
… he would be required to comply with the rules of the agency programme and he would receive up to [24 hours a day, seven days a week] mentoring. He [would] be encouraged and supported to achieve specific individual goals. Mr Puketapu would be supported by Anglican Action to participate in a specific reintegration plan developed to address the identified needs.
Mr Fourie
[26] The applications before me are supported by a report from Mr Fourie, a registered psychologist. Mr Fourie also gave evidence in person at the hearing. Mr Puketapu declined to be interviewed by Mr Fourie, who compiled his report primarily from information held on Department files relating to Mr Puketapu.
[27]Mr Fourie’s opinion can be summarised in the following way.
(i) The ESO threshold
[28] In answer to the question of whether or not there is a pervasive pattern of serious sexual offending, Mr Fourie traversed Mr Puketapu’s criminal record from 1995 to 2011.16 Mr Fourie had no doubt that Mr Puketapu displayed a pervasive pattern of serious sexual offending.
[29] In addressing the issue as to whether there is a high risk that Mr Puketapu will in future commit a relevant sexual offence, Mr Fourie applied three assessment tools, namely:
15 Affidavit of M J Gibbs, 1 May 2017 at [21].
16 Summarised above at [18] to [19].
(1)The RoC RoI actuarial measure that has been developed for the Department to assist in the prediction of an offender’s risk of re- imprisonment. The RoC RoI is based on actuarial predictions derived from criminal history information.
(2)The ASRS,17 which is an actuarial screening instrument designed to estimate the likelihood of further convictions for sexual offences among offenders who have already been sentenced for a sexual offence.
(3)The VRS-SO,18 a tool designed for use with sex offenders to undertake, amongst other objectives, risk assessment and treatment planning.
[30] Using these instruments, Mr Fourie concluded that there is a high risk of Mr Puketapu committing a further sexual offence while in the community. A factor contributing to his conclusion was Mr Puketapu’s low level of intellectual functioning not because Mr Puketapu’s intellectual limitations will cause him to offend, but because he has diminished “self regulatory capacity”. Mr Fourie said:19
Based on the available information, it is considered at this time that there is a high risk that Mr Puketapu will engage in relevant sexual offending within 10 years of [his] release.…
On the basis of his known history, sexual offending could be targeted at a female, child or adult, known or unknown to him. A relapse is likely to be precipitated by drugs or alcohol abuse by Mr Puketapu. Mr Puketapu is likely to rely on potential victims being intoxicated or otherwise vulnerable (eg by age, or physical intellectual ability) and could enforce their compliance by offending when they are in a stupefied or vulnerable state. Sexual offending could involve threats and violence.
[31] When evaluating the factors set out in s 107IAA of the Act, Mr Fourie concluded:
(1)Mr Puketapu has displayed an intense drive to commit relevant sexual offences. Mr Fourie noted that Mr Puketapu’s offending suggests an
17 Automated Sexual Recidivism Scale.
18 Violence for scale-sexual offender version.
19 Mr Fourie’s report, 29 July 2016 at [26] and [27].
escalation in seriousness and that during his last offending he left the victim but later returned and continued to violate her.
(2)The number of offences for which Mr Puketapu has been convicted, the number of his victims and the indiscriminate nature of his victim choice leads to the conclusion that he has a proclivity for serious sexual offending.
(3)Mr Puketapu’s history of sexual offending, which spans 13 years strongly indicates that he has limited self-regulatory capacity. This is compounded by Mr Puketapu’s low intellectual functioning. His ability to self-regulate is further reduced when under the influence of substances.
(4)During his previous involvement in the criminal justice system Mr Puketapu displayed a lack of acceptance of responsibility or remorse for his actions. Mr Fourie said that it is apparent from the file information that Mr Puketapu has little genuine insight into the impact of his behaviour on his victims and that he seeks to justify it.
(ii) Intensive monitoring threshold
[32] In his report Mr Fourie commented on the substantial assistance and support Mr Puketapu requires. Evidence for this conclusion is demonstrated by the fact that between 2008 and 2011, Mr Puketapu breached his ESO four times. Even more disconcerting is that Mr Puketapu’s offending in 2011 occurred whilst he was subject to his ESO.
Ms Dickson
[33] The Department also relied on a report from Ms Dickson, a registered clinical psychologist, who, in February 2017 prepared a psychological treatment report on Mr Puketapu. Ms Dickson considered Mr Puketapu to be a vulnerable individual and that his intellectual disabilities mean he requires a high level of support and assistance
in order to manage his risks in the community. Ms Dickson also said Mr Puketapu requires “stable accommodation and a strong pro-social support network”.
[34] Ms Dickson referred to a meeting between herself, Mr Puketapu and various support services staff in which it was agreed that Mr Puketapu would engage in treatment for 12-18 months with WellStop. WellStop is a community provider for sexual offending providing a specialist service for men with an intellectual disability. It is unclear whether treatment proceeded, particularly when Mr Puketapu’s accommodation was transferred to Napier.
Files notes
[35] Ms Light, counsel for the Department, referred to two file notes created very recently by a Department employee concerning Mr Puketapu. Mr Fourie produced the file notes in evidence. The first file note suggests that Mr Puketapu has a very inflated view of his sexual prowess. Mr Fourie was not prepared to place much weight on the comments attributed to Mr Puketapu about the frequency of his sexual activities. More troubling is the reference to Mr Puketapu apparently minimising his role in the 2011 sexual offending.
[36] The second file note referred to what treatment and counselling programmes are currently available to Mr Puketapu. Orongomai Marae Te Hikoitanga Reintegration Services, which has provided some assistance to Mr Puketapu, said their abilities to support him was “very limited” but they could provide a safe place to house Mr Puketapu. Another support agency said there are two support people available to Mr Puketapu as “friends in the community” but there is not yet a specific plan or programme for him.
Mr Riley
[37] Mr Riley provided a report based upon his assessments and interviews with Mr Puketapu and related information. In summary, Mr Riley concluded that Mr Puketapu faces major specific challenges in the future and that his progress is likely to be slow because of his low-level of intellectual functioning. Mr Riley, however, could see in Mr Puketapu a desire and motivation to engage with treatment and to move forward.
Mr Riley suggested a longer term approach needed to be adopted which would involve motivational interviewing skills by an experienced practitioner designed to fit with Mr Puketapu’s unique needs.
[38] Mr Riley said that in his assessment, Mr Puketapu may benefit from treatment that:20
is available in the community from WellStop. In [his] view, treatment should, at least in the initial phases, be provided on an individual basis and seek to provide [Mr Puketapu] with a basic structure within which he can start to examine his feelings and motivations. [Mr Riley] would hope that such treatment could proceed, at a slow pace, to group involvement and with support [Mr Puketapu] is likely to derive benefit from such involvement.
[39] Mr Fourie said in cross-examination that he “did not disagree” with Mr Riley’s statement that treatment could proceed with the Wellington based WellStop programme.
Analysis
[40] The first issue I have considered is whether an ESO is appropriate in Mr Puketapu’s case. I am satisfied that there is a high risk that Mr Puketapu will commit a relevant sexual offence and consider the four risk factors referred to under s 107IAA, and discussed in Mr Fourie’s report, to be apparent. Of those factors I am most concerned with Mr Puketapu’s limited self-regulatory capacity21 and his limited level of understanding and insight into his offending.22
[41] Mr Handy, senior counsel for Mr Puketapu, properly accepted that as an ESO was already in place there was little utility in considering the merits of an ESO. The focus of the argument advanced on behalf of Mr Puketapu was that an IMC should not also be imposed in this case.
[42] There is substantial agreement between the experts on the following factors that tend to weigh in favour of ordering the Parole Board to impose an IMC. In particular:
20 Mr Riley’s report, 23 April 2017 at [24].
21 Parole Act 2002, s 107IAA(1)(c).
22 Section 107IAA(1)(d). Refer [47] below.
(1)Mr Riley appeared to accept that Mr Puketapu posed a high risk of sexual offending in the community.
(2)All experts acknowledged Mr Puketapu’s very low level of intellectual functioning compounds the challenges he faces.
(3)There was complete acceptance that Mr Puketapu requires a stable living environment.
(4)The experts also agree Mr Puketapu would benefit from intensive treatment from suitably qualified professionals.
[43] Factors that tip the balance against requiring the imposition of an IMC are, however:
(1)Mr Puketapu has not shown signs of reoffending since his release from prison on 11 August 2016.
(2)Mr Puketapu is and will continue to be subject to the very real constraints of an ESO until 25 May 2024. An IMC would be an additional penalty.
(3)Mr Puketapu is subject to electronic monitoring. This provides some level of assurance for the safety of the community. It has not been suggested that there are any problems with monitoring Mr Puketapu.23
(4)Mr Puketapu is able to receive treatment and assistance in Wellington from the WellStop programme whilst residing at a Salvation Army supported home.
(5)Both Mr Riley and Mr Fourie agreed Mr Puketapu has indicated a willingness to engage with treatment. Mr Puketapu however opposes
23 Cf Chief Executive Department of Corrections v Brown, above n 2.
the current application in part because it would involve him being removed from the community where he currently receives support.
[44] I would feel more confident in my conclusions if I had unequivocal evidence that the Salvation Army or similar organisation could provide Mr Puketapu with supported living arrangements for a minimum period of 12 months. I strongly urge this be done.
[45] One factor that has caused me particular concern is whether or not Mr Puketapu has genuinely demonstrated any level of understanding of his offending. Mr Fourie said that Mr Puketapu has continued to minimise his culpability and the effects of his offending on his victims. Mr Riley on the other hand was confident that there is evidence Mr Puketapu has recently been “prepared to not only acknowledge his culpability for [his] offending, but also expressed his remorse for it and was able to also evince some appreciation of the impact which his offending [has] had on his victims”.24 Neither Mr Riley or Mr Fourie were cross-examined on these particular matters. I have therefore not been able to draw any conclusions as to whether or not Mr Puketapu now genuinely appreciates his culpability and the impact of his offending.
[46] The onus is not on Mr Puketapu to demonstrate why an IMC should not be imposed. It is for the Department to justify the imposition of an IMC. By a very narrow margin I have resolved that the Department has not met the threshold required in the circumstances of this case.
[47] This has been a very finely balanced decision. It is only by a small margin that I have concluded that the Department has not demonstrated that Mr Puketapu and the community’s interests require the imposition of an IMC over and above the ESO.
[48] I would be very concerned if Mr Puketapu did not receive stable accommodation and treatment at WellStop or a similar organisation. If the Department reapplies for an IMC the Court will, no doubt, consider the matters I have just referred to.
24 Mr Riley’s report, above n 20, at [23].
[49] In the meantime, I do not think an IMC is necessary and accordingly grant the Department’s application to withdraw its application for a new ESO. That course of action automatically disposes of the Department’s application for an IMC.
[50]There will be no order for costs.
D B Collins J
Solicitors:
Crown Solicitor, Wellington for Applicant Francis J Handy, Wellington for Respondent
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