Department of Corrections v Talatonu

[2014] NZHC 1849

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2002-090-204666 [2014] NZHC 1849

BETWEEN

DEPARTMENT OF CORRECTIONS

Applicant

AND

APELU TALATONU Respondent

Hearing:	7 August 2014
Appearances:	R E Savage for Applicant A J Holland for Respondent
Judgment:	7 August 2014

ORAL JUDGMENT OF VENNING J APPLICATION FOR AN EXTENDED SUPERVISION ORDER

Solicitors:           Meredith Connell, Auckland

Public Defence Service, Auckland

DEPARTMENT OF CORRECTIONS v TALATONU [2014] NZHC 1849 [7 August 2014]

[1]      The  Chief  Executive  of  the  Department  of  Corrections  applies  for  an extended supervision order under s 107F of the Parole Act 2002 against Mr Apelu Talatonu.    Mr Talatonu  has  now  served  his  sentence  but  is  represented  by Mr Holland and is present this morning. After taking advice Mr Holland advises that Mr Talatonu does not oppose the imposition of the extended supervision order sought. The Court is, however, still required to consider the application and determine it on its merits.

[2]      Mr Talatonu is currently 58 years old.  He is of Samoan descent.  On 16 May

2003 Mr Talatonu was sentenced by this Court to a term of 11 years’ imprisonment with a minimum period of five and a half years following conviction on two charges of sexual violation by rape, two charges of sexual violation by unlawful sexual connection, and four charges of indecent assault.  The offending involved his three step-children.  The female victim was aged 10 or 11 at the time, one male victim was aged between nine and 14 and the other male victim was aged between nine and 10.

[3]      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 sexual offences against children or young persons. Under  the  scheme  of  the Act  eligible  offenders  may  be  subject  to  parole-type conditions set for individuals by the Parole Board for a period of up to 10 years.

[4]      In McDonnell v Chief Executive of the Department of Corrections1 the Court of Appeal noted the requirements for an order under s 107 of the Act.  The Court must be satisfied, having considered the matters addressed in a health assessor’s report, that the offender is likely to commit any of the relevant offences referred to in s 107B(2) on ceasing to be an eligible offender.  That is an exercise of judgment not related to the burden or standard of proof.  The issue of relevant offending refers to a risk of relevant offending that is both real and ongoing and one that cannot sensibly be ignored having regard to the nature and gravity of the likely reoffending.  The Court is required to give separate consideration to the appropriate term or length of

the order.

1      McDonnell v Chief Executive of the Department of Corrections (2009) 8 HRNZ 770.

[5]      In the present case the application was made when Mr Talatonu was an eligible offender.  The application is supported by a report completed by Michelle Proctor, a registered clinical psychologist.   Mr Talatonu co-operated with the interview by Ms Proctor.

[6]      The factors the Court are required to consider are:

The nature of any likely further sexual offending by the offender, including the age and sex of likely victims.

[7]      In the opinion of the psychologist consideration of Mr Talatonu’s previous offending as well as his behaviour whilst on parole suggests further sexual offending would be likely to occur within a familial or similar environment.   Mr Talatonu’s previous offending and his actions whilst on parole lead the psychologist to conclude that most likely victims of sexual recidivism would be women or children with whom he has developed a relationship or through familial connections.

The offender’s ability to control his or sexual impulses

[8]      Mr Talatonu acknowledged setting up situations to sexually offend against his stepdaughter, which indicated a degree of planning and a level of control over his sexual impulses, but he also acknowledged he had difficulty controlling his sexual thoughts about her at times.   He also reported persistently requesting sex with his previous partner while on parole and acknowledged he had some difficulty accepting her refusal.  In the opinion of the psychologist this may indicate continued difficulty managing  his  sexual  thoughts  and  impulses,  particularly  when  intoxicated  or sexually aroused.

The offender’s predilection and proclivity for sexual offending

[9]      In the opinion of the psychologist the victim typology from his previous convictions and behaviour whilst on parole suggests that Mr Talatonu may be relatively indiscriminate towards whom he makes sexual advances.  While he denies a preference for sexual activity with children or adolescents and self-reported a preference for women aged 35 or over, his offending and recent actions on parole suggest otherwise.

The offender’s acceptance of responsibility and remorse for past offending

[10]     Mr Talatonu received treatment.  His treatment report indicated he expressed remorse and shame for his behaviour and appeared to gain some appropriate understanding of the effects of his offending on his stepdaughter.  However, as the psychologist noted, Mr Talatonu continues to minimise aspects of his offending with regard to his stepsons.   There is a pattern of entitlement to his behaviour and he appears to continue to have difficulty having a balanced view of how his behaviour affected others.  In the opinion of the psychologist any acceptance of responsibility and remorse is, at best, superficial.

Other considerations

[11]     Mr Talatonu was released on parole in December 2010 but was recalled in November 2012 and was subsequently sentenced to a further seven month period of imprisonment for breach of his release conditions to not have contact with a child under the age of 16.  At the time Mr Talatonu had developed a relationship with a woman who was the mother of three girls aged five, 15 or 16, and 18 years.   He reported he had initially begun a relationship with the 18 year old daughter.  They would share alcohol, he would give her money for food and cannabis and they had sex on occasion.  He also described one occasion when he had bought alcohol and had taken the middle child who was about 15 at the time to the park and consumed alcohol with her.  He denied having sexual thoughts about either of the younger girls during the time he had contact with them.

[12]     On further investigation the police have obtained DNA results in respect of a child the 18 year old female has given birth to.  The results indicate that Mr Talatonu was the father of this child.

[13]     Having regard to the above factors this Court is satisfied that Mr Talatonu is likely to commit one or more of the relevant offences in s 107B(2) and an extended supervision order is appropriate in his case.

[14]     The next issue for the Court is the duration of that order.   The Court is required to fix a term that must be the minimum period required for the purposes of

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 victims and the likely duration of the risk.

[15]     Although Mr Talatonu is now aged 58, his recent behaviour whilst on parole particularly given that such behaviour occurred after the treatment received in prison, is of particular concern.  The psychologist notes in her report that the risk posed by individuals with Mr Talatonu’s assessed risk level remains stable over an extended period of time, with the risk remaining over a 10 year period.   The psychologist recommends that any order should be for the period of 10 years.

[16]     I am satisfied, having regard to the factors referred to above and the matters contained in more detail in the psychologist’s report that in this case the period of 10 years is the appropriate period.

Result/orders

[17]     There  will  therefore  be  an  extended  supervision  order  to  apply  to  Mr

Talatonu.   The period of the order is for 10 years.   The start date of the order is

today’s date, 7 August 2014.

Venning J