Department of Corrections v Thorpe
[2017] NZHC 2559
•20 October 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-163 [2017] NZHC 2559
BETWEEN DEPARTMENT OF CORRECTIONS
Applicant
AND
BRIAN THORPE
Respondent
Hearing: 27 September 2017 Appearances:
B D Tantrum and S Navot for Applicant
B Vaili for RespondentJudgment:
20 October 2017
JUDGMENT OF PALMER J
This judgment is delivered by me on 20 October 2017 at 3.30 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
Public Defence Service, Manukau City
DEPARTMENT OF CORRECTIONS v THORPE [2017] NZHC 2559 [20 October 2017]
Summary
[1] The Chief Executive of the Department of Corrections applies for an extended supervision order (ESO) against Mr Brian Thorpe for 10 years. In 1996 Mr Thorpe was convicted of one charge of unlawful sexual connection, and three charges of indecency, with two girls under 12 over 14 months. In 2012 Mr Thorpe was convicted of eight charges of indecent assault on three boys and a girl between May 2004 and December 2010. They were all under 12 except one charge related to a boy between
12 and 16.
[2] It is agreed Mr Thorpe has a pervasive pattern of, and a predilection or proclivity for, serious sexual offending. I find he also displays an intense drive, desire or urge to commit relevant sexual offences, a limited self-regulatory capacity and a lack of understanding of or concern about the impact of offending on victims. I consider there is a high risk that, on release from prison and until he establishes himself in the community, Mr Thorpe will commit a relevant sexual offence in future.
[3] The duration of an ESO must be proportionate to the likely duration of the risk of reoffending. Otherwise, the ESO would not be reasonable or demonstrably justified in a free and democratic society and I would not have the power to so order, under the Parole Act 2002 (the Act) or s 3(a) of the New Zealand Bill of Rights Act 1990 (Bill of Rights). Here, I impose an ESO of three years on Mr Thorpe with three interim special conditions. If Mr Thorpe still poses a sufficient risk after that period Corrections can apply for a further order.
Mr Thorpe’s offending
[4] From March 1995 to May 1996, when he was aged 39 to 40, Mr Thorpe engaged in sexual offending against two sisters at his home. They were friends of his own children. His offending against a girl aged nine to 10 took place over 14 months. His offending against an 11-year-old girl occurred over two months. Mr Thorpe self- reported his offending to Police in May 1996. That year he pleaded guilty to, and was convicted of, three charges of indecent assault on a girl under 12 and one charge of
unlawful sexual connection with a girl under 12. On 2 July 1996 Paterson J sentenced him to three years’ imprisonment.1
[5] From May 2004 to December 2010, when he was aged 48 to 54, Mr Thorpe engaged in sexual offending against a seven-year-old girl and three boys aged 10 to
13 years. They were friends of his children and the child of one of his own friends. Again the offending occurred in his home except for one incident in the home of a friend. Mr Thorpe pleaded guilty to, and was convicted of, two charges of indecent assault on a girl under 12, six charges of indecent assault on a boy under 12 and one charge of indecent assault on a boy between 12 and 16.
[6] On 22 February 2012 Woolford J sentenced Mr Thorpe to six years and two months’ imprisonment with a minimum period of imprisonment of four years.2 On the basis of a Corrections’ psychologist’s report, Woolford J commented in his sentencing remarks that Mr Thorpe was at fairly low risk of reoffending on release and a period after that but he demonstrated a medium to high risk of reoffending in the longer term which would be increased by lack of relationships and social interaction.3
Woolford J considered the features of Mr Thorpe’s offending were not so overwhelming as to command imposition of preventive detention.4 Given the length of the sentence of imprisonment he imposed, the high minimum period of imprisonment and the possibility of an ESO, he considered preventive detention was not necessary.5 In relation to the possibility of an ESO he stated:6
While it is ultimately up to a Judge to make that decision before you are released in terms of a fresh assessment of your risk, the imposition of an extended supervision order on your release is a clear possibility given your history and the expert opinions of the health assessors in this case.
[7] Mr Thorpe is now 61 years old. He grew up without a father and his mother led a troubled life, with a number of suicide attempts. He says he was subject to sexual
1 R v Thorpe HC Auckland S101/96, 2 July 1996.
2 R v Thorpe [2012] NZHC 229. This approach appears to be consistent with the Supreme Court’s subsequently expressed view in Chisnall v Chief Executive of the Department of Corrections
[2017] NZSC 114 at [83] that a court needs to consider the least intrusive means of managing any
risk posed by a person
3 At [31].
4 At [92].
5 At [92].
6 At [75].
abuse by a neighbour between the ages of eight and 10 years. He has a daughter and three sons by four mothers. His youngest son is now 17 years old.
The application
[8] Corrections applied for an ESO in respect of Mr Thorpe under s 107F of the Act on 17 May 2017. Mr Thorpe was released on parole on 25 September 2017. He is currently subject to post-release parole conditions. They expire on 28 March 2018.
[9] In his written submissions Mr Tantrum applied for an interim supervision order (ISO) imposing 12 additional conditions on Mr Thorpe under s 107FA(1)(a) of the Act. At the hearing on 27 September 2017, having determined that nine of those conditions replicated Mr Thorpe’s post-release parole conditions, Mr Tantrum maintained the application only in relation to the three additional conditions.
(h) To submit to Global Positioning System (GPS) monitoring as directed by a Probation Officer, in order to monitor your compliance with any condition(s) relating to whereabouts, and when issued a mobile device by the Department, to carry and keep it charged at all times and answer the device for the purpose of communicating with the Probation Officer.
…
(k) Not to possess, consume or use any alcohol or illicit drugs not prescribed to you.
(l) To allow the New Zealand Police or a Probation Officer (or any of their respective agents) to check or clone on site (or to surrender for the purposes of checking off site if required) any electronic device in your possession capable of accessing the internet and/or capturing, storing, accessing or distributing images (including without limitation any personal computers, notebooks, tablets or mobile-phones).
[10] Mr Thorpe did not oppose conditions (k) or (l). Condition (h) was an updated version of an electronic monitoring condition to which Mr Thorpe is already subject on parole. On 27 September 2017 I imposed the three additional conditions as sought, until determination of the application for the ESO.
Law of ESOs
[11] The ESO regime was first created by amendment to the Act by the Parole
(Extended Supervision) Amendment Act 2004. It was modified in 2009 and more
significantly amended in 2014 with creation of the public protection order (PPO) regime, in the Public Safety (Public Protection Orders) Act 2014. The ESO regime provides eligible offenders who have been convicted of certain offences may, after assessment by a health assessor, be made subject to an ESO by a court for up to 10 years (s 107).
[12] The New Zealand criminal justice system usually restricts individuals’ freedom because of what they have done in the past. However, the regimes for imposing ESOs, PPOs and preventive detention also restrict freedom because of what a court considers individuals might do in the future. Preventive detention can be imposed as part of a sentence for past offending. PPOs are imposed under a civil risk-management regime. ESOs, however, are penalties imposed by the criminal justice system but not for past offending. Bills introducing and amending the ESO regime have been the subject of three negative reports by Attorneys-General Wilson and Finlayson in 2003, 2009 and
2014 to the House of Representatives under s 7 of the Bill of Rights.7
[13] The Attorney’s report in 2014 considered amendments to the regime brought it into compliance with the right not to be arbitrarily detained by requiring biennial reviews of high impact conditions that might amount to detention.8 But, in each of their three reports, the Attorneys considered the regime breached the prohibition on retroactive penalties and double jeopardy.9 In the 2014 report the Attorney noted a future risk of offending can be addressed at the time of sentencing in way that will not infringe the Bill of Rights through the sentence of preventive detention or through a civil regime such as the PPO regime, which could be extended to have the same purpose and effectiveness of ESOs.10 As it is, the Attorney concluded the ESO regime adds a further criminal punishment to a sentence the offender has already served and
its application can be retroactive. I did not hear submissions about the relevance of
7 Hon Margaret Wilson Report of the Attorney-General under the New Zealand Bill of Rights Act
1990 on the Parole (Extended Supervision Orders) and Sentencing Amendment Bill (2003) [2003
Report]; Hon Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Parole (Extended Supervision Orders) Amendment Bill (2 April 2009) [2009 Report]; Hon Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Parole (Extended Supervision Orders) Amendment Bill (27 March
2014) [2014 Report].
8 At [11].
9 2003 Report, at [14]; 2009 Report, at [10]; 2014 Report, at [17].
10 At [18]–[19].
such views to the application before me here and, in any case, retroactive application is not an issue here.
[14] I am, under New Zealand’s constitution, bound to apply and exercise my powers under the ESO Act passed by Parliament. But in so doing, irrespective of any
inconsistency of the Act with the Bill of Rights, I am required to exercise my powers to make orders under the Act consistently with the Bill of Rights, by s 3(a).11 In this case, that bears particularly on the duration of an ESO which I consider further below.
[15] The requirements for applications for ESOs are set out in the Act:
(a) The Chief Executive of Corrections (Corrections) is empowered to apply for an ESO and may do so before expiry of a sentence or expiry of a previous ESO (s 107F).
(b)Every application must be accompanied by a report by a health assessor addressing specified matters (s 107F). The Court of Appeal has warned against “rubber-stamping” health assessors’ reports.12 Courts need to explain why evidence is accepted and why that leads to the conclusion, “on an individualised assessment”.13
[16] Once an ESO is imposed, the following apply:
(a) The offender, or probation officer, may apply to the Parole Board to vary any condition of an ESO (s 107O). Corrections, or the offender subject to an ESO, may apply to court to cancel an ESO at any time after it has come into force on the relevant grounds the offender does not pose a high risk of sexual offending within the remaining term of
the order (s 107M).
11 Attorney-General v Chapman [2011] NZSC 100, [2012] 1 NZLR 462 at [25] per Elias CJ; R M v Immigration and Protection Tribunal [2016] NZHC 735 at [48]. As explained in Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [5.6.6]: “[t]he weight of judicial authority in New Zealand supports this position”.
12 Barr v Chief Executive of the Department of Corrections CA 60/06, 20 November 2006 at [32]
and R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [7].
13 For example R v Peta, above n 12, at [15]–[54] and [57].
(b)Every two years the Parole Board must review any (defined) “high- impact condition” of an ESO (s 107RB). A court must review an ESO after 15 years of an offender first becoming subject to an ESO and, after that, every five years after the imposition of any and each new ESO (s
107RA).
[17] The standard terms of an ESO are set out in s 107JA. They include requirements:
(a) to report to a probation officer;
(b)to have the consent of a probation officer before moving a new residence, leaving New Zealand or changing employment;
(c) to allow the collection of biometric information for specified purposes;
and
(d)not to associate with persons under 16 years or with victims or other specified classes of person.
[18] The Court can also impose intensive monitoring conditions under s 107IAC. Sections 107K and 107IA empower the Parole Board (or the Court on an interim basis) to impose special conditions on an offender subject to an ESO, including:
(a) residential restrictions or intensive monitoring within the first 12 months of an ESO;
(b) requirements to participate in rehabilitation programmes;
(c) restrictions on use of drugs and alcohol; and
(d) electronic monitoring.
[19] It is an offence to breach any condition of an ESO without reasonable excuse, carrying a maximum penalty of up to two years’ imprisonment (s 107T).
[20] Most relevant to this case, ss 107I and 107IAA set out the purpose, and relevant criteria for imposition, of ESOs:
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.
(2) A sentencing court may make an extended supervision order if, following the hearing of an application made under section 107F, the court is satisfied, having considered the matters addressed in the health assessor’s report as set out in section 107F(2A), that—
(a) the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and
(b) either or both of the following apply:
(i) there is a high risk that the offender will in future commit a relevant sexual offence:
(ii) there is a very high risk that the offender will in future commit a relevant violent offence.
(3) To avoid doubt, a sentencing court may make an extended supervision order in relation to an offender who was, at the time the application for the order was made, an eligible offender, even if, by the time the order is made, the offender has ceased to be an eligible offender.
(4) Every extended supervision order must state the term of the order, which may not exceed 10 years.
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.
[21] In 2006, in Belcher v Chief Executive of the Department of Corrections, the Court of Appeal noted such legislation “necessarily gives rise to human rights concerns” and identified a number of relevant provisions of the New Zealand Bill of Rights Act 1990 (Bill of Rights) and the International Covenant on Civil and Political Rights (ICCPR).14 It concluded “the imposition through the criminal justice system of significant restrictions (including detention) on offenders in response to criminal behaviour amounts to punishment and thus engages s 25 and 26 of the [Bill of Rights]”.15
[22] In McDonnell in 2009 the Court of Appeal considered only the clauses of the Bill of Rights that relate to sentencing are engaged as ESOs were more analogous to sentencing than a fresh criminal charge.16 In McDonnell the Court of Appeal also decided there is no burden of proof involved in an application for an ESO but rather, following the High Court in McIntosh, to be “satisfied” for the purposes of s 107I(2) a court simply “makes up its mind” as it does on preventive detention applications.17
[23] In both Belcher and McDonnell the Court of Appeal considered “likely” to reoffend in (an earlier version of) s 107I(2) refers to a risk “that is both real and ongoing and one that cannot be sensibly ignored having regard to the nature and gravity of the likely re-offending”.18 In 2016, in Alinzi, the Court characterised the latest version as involving a three-step process:19
(a) First, the Court must determine whether offender has, or has had, a pervasive pattern of serious sexual or violent offending.
14 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) at [26]– [29].
15 At [49].
16 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8
HRNZ 770 at [40].
17 At [75].
18 Belcher, above n 14, at [11]; McDonnell, above n 16, at [76].
19 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [13].
(b)Second, the Court must make specific findings as to whether the offender meets the qualifying criteria set out in s 107IAA.
(c) Third, if those criteria are met, the Court must make a determination about the risk of the offender committing a relevant sexual or violent offence.
[24] The Court in Alinizi considered “displays” in s 107IAA(1)(a) “is intended to convey that the relevant traits and behavioural characteristics must be currently possessed by the offender”.20 It does not require external expression associated with manifestation to the public at large.
Should Mr Thorpe be subject to an ESO?
The issues
[25] Ms Vaili, for Mr Thorpe, does not dispute that his offending is sufficient to establish he has a pervasive pattern of serious sexual offending for the purposes of s
107I(a). She also accepts Mr Thorpe has a predilection or proclivity for serious sexual offending for the purposes of s 107IAA(1)(b). I agree both points are established on the evidence. In order to decide whether Mr Thorpe should be subject to an ESO, the disputed issues I need to determine are:
(a) Issue 1: Does Mr Thorpe display an intense drive, desire or urge to commit a relevant sexual offence? (s 107IAA(1)(a)).
(b) Issue 2: Does Mr Thorpe have limited self-regulatory capacity? (s
107IAA(1)(c)).
(c) Issue 3: Does Mr Thorpe display a lack of acceptance of responsibility or remorse for his past offending or an absence of understanding for, or concern about, the impact of his offending on actual or potential victims? (s 107IAA(1)(d)).
(d)Issue 4: If those criteria are met, is there a high risk that Mr Thorpe will in future commit a relevant sexual offence? (s 107I(2)(b)(ii)).
Health assessments
[26] Each party called a psychologist as an expert health assessor, who gave evidence before me: Ms Brigid Stark, a Corrections’ psychologist; and Mr Jim van Rensburg a senior psychologist at the Mason Clinic, in his private capacity and at Mr Thorpe’s request. I summarise the available information and their assessments in general terms here and then consider aspects of them in relation to each issue.
[27] During his first period of imprisonment, in 1997 to 1998, Mr Thorpe completed the nine-month child sexual offender treatment programme at Te Piriti Special Treatment Unit (Te Piriti). A 1998 Corrections Psychological Service report considered he had made positive progress but appeared to intellectualise his thoughts and feelings and demonstrated little evidence of an emotional response.21 Mr Thorpe subsequently advised Dr Stark he did not fully understand the process and his unwillingness to explore his bisexual orientation at that time contributed to him not fully utilising the programme to address his offending-related needs. He attended a monthly relapse prevention group. During his second period of imprisonment, Mr Thorpe again participated in treatment at Te Piriti, since August 2015. File notes indicate he was well engaged and an active participant in the programme.
[28] Ms Stark interviewed Mr Thorpe and a psychologist involved in his treatment, reviewed his Corrections file and Te Piriti information (with his consent) and interviewed his former partner. She provided a 12-page report dated 8 February
2017.22 She considered Mr Thorpe’s overall risk of further sexual re-offending within
10 years of release was medium-high. She considered Mr Thorpe was at medium-high risk of committing a further relevant offence while in the community based on factors
including the results of several psychometric instruments:
21 Julie Maude and Lavinia Nathan Department of Corrections Psychological Service Report (29
April 1998).
22 Bridget Stark Department of Corrections Health Assessment Report (8 February 2017) [Stark
Report].
(a) On the Automatic Sexual Recidivism Scale (ASRS) Mr Thorpe was assessed as being in the medium-low risk category for reoffending, based on static risk predictors.23 Twelve per cent of offenders in this category go on to re-offend within 10 years.
(b)On the Violent Risk Scale – Sexual Offender Version (VRS-SO) Mr Thorpe was assessed as being in the middle of the moderate high risk category with a score of 36.24 He was found to be in the 88th percentile for sexual deviancy, the 15th percentile for criminality and the 17th percentile for treatment responsivity. Ms Stark considers this is the most important instrument as it takes into account static and dynamic factors.
(c) On the Personality Assessment Inventory Scale (PAI) Mr Thorpe was assessed as not having a psychopathic personality and below the average score for New Zealand offenders.25
[29] On 26 August 2017, Dr Stark provided an eight-page updated addendum report.26 Dr Stark conducted another interview with Mr Thorpe as well as interviews with a psychologist and a program facilitator at Te Piriti. Te Piriti assessed Mr Thorpe’s VRS-SO score as 32 at the beginning of his treatment there with a marginally below average degree of change following treatment. Dr Stark noted Mr Thorpe’s willingness on release to make contact with the LGBT community and determination to participate in a relapse prevention group were potential protective factors.27 She considered his advancing age may mitigate his risk of reoffending to some degree. She stated in the report and in her evidence that the risk of sexual reoffending generally declines with age from 50 to 60 years but that had yet to be established in relation to
Mr Thorpe who re-offended at the age of 54.28 In her evidence-in-chief, Dr Stark also
23 At [20].
24 At [21].
25 At [14].
26 Bridget Stark Department of Corrections Health Assessment Report (25 August 2017) [Stark
Addendum Report].
27 At [19].
stated sexual deviancy tends to override age. Dr Stark continued to assess Mr Thorpe’s risk of further relevant sexual offending while in the community as moderate-high.29
[30] Mr van Rensburg had access to Ms Stark’s first report, the application for an ESO, Mr Thorpe’s criminal history, the two sets of notes from his sentencings, the summary of facts of the 2012 offending, the 1998 Te Piriti report and a 2011
Corrections Psychological Assessment Report. He interviewed Mr Thorpe and, separately, his treating psychologist. He provided a 12-page report dated 14 August
2017.30 His overall conclusion emphasised that both periods of Mr Thorpe’s offending
occurred when he was single, having failed to maintain long-term intimate relationships and experiencing inner conflict and confusion about his sexual identity.31
He considered Mr Thorpe’s risk of sexual re-offending over five and 10 years was moderate-low, based on factors including the following:
(a) Mr Thorpe’s score in an actuarial static risk assessment instrument, Static-99R, places him at average risk level. Nine per cent of offenders in that category with custodial sentences reoffend within five years and
15 per cent within 10 years. Mr van Rensburg considered this a more accurate instrument than the ASRS as it is more sensitive to age. He noted Mr Thorpe’s score was slightly higher than the ASRS score by Ms Stark.
(b)Mr Thorpe’s score in the STABLE 2007 assessment of dynamic risk predictors of sexual recidivism put him in the moderate risk group.
(c) Mr van Rensburg’s assessment of Mr Thorpe in terms of the VRS-SO instrument was 30, which put him at the high end of the moderate-low category. Mr van Rensburg’s scoring considered Mr Thorpe’s lack of
recent offence-paralleling behaviour while he was in custody.
29 At [27].
30 Jim van Rensburg Psychological Assessment Report: Brian James Thorpe (14 August 2017).
(d)Mr Thorpe’s score under the Structured Assessment of Protective Factors (SAPROF) instrument, which focuses on protective factors that may compensate for risk factors was estimated as moderate-low.
[31] Mr van Rensburg considered Mr Thorpe is unlikely to offend against children as long as he enjoys fulfilling sexual relationships with adult. He considered the risk of his offending against children is likely to reduce significantly over the coming years. Mr van Rensburg considered Mr Thorpe’s second attendance at Te Piriti allowed him to conclude he was bi-sexual and that this appeared to open up new avenues for Mr Thorpe to explore a lifestyle in the LGBT community, which would be a protective factor.
Issue 1: Does Mr Thorpe display an intense drive, desire or urge to commit a relevant sexual offence?
[32] Mr Tantrum, for Corrections, submits the answer to this question is yes. He points to Ms Stark’s assessment that Mr Thorpe’s offending occurred in particular circumstances of high sexual arousal, access to child victims and isolation from appropriate adult relationships. He submits Mr van Rensburg focuses on the circumstances Mr Thorpe has recently found himself in, in custody, and says what is required is that Mr Thorpe possesses the relevant traits, not that they are presently manifest.
[33] Ms Vaili relies on Mr van Rensburg’s report that there has been no indication of offence-paralleling behaviour during Mr Thorpe’s prison sentences and that his age, lack of access to children, acceptance of being bisexual and positive response to treatment militate against this issue being satisfied. She submits, relying on Alinizi, that the traits are required to be presently displayed and that they are not here.
[34] I do not consider Mr Thorpe’s behaviour while in custody is a reliable guide to whether he presently displays an intensive drive to commit a relevant sexual offence. The circumstances did not allow that. Children of the ages he targeted in his previous offending were not in prison. Neither were they during his first term of imprisonment, after which he re-offended. His apparently positive response to treatment did not prevent that.
[35] I agree age might generally be considered to militate against Mr Thorpe currently possessing the same drive he has demonstrated in the past. But, as Ms Stark noted, and Mr van Rensburg agreed, that general conclusion has not been demonstrated to apply to Mr Thorpe individually. And his offending up until the age of 54 may suggest otherwise.
[36] I do not discern anything that suggests the intense drive to commit a sexual offence that has been displayed by Mr Thorpe’s two periods of offending over a 15 year period until December 2010 no longer subsists. I consider he still possesses that drive, which is what is required to satisfy this pre-condition for an ESO.
Issue 2: Does Mr Thorpe have limited self-regulatory capacity?
[37] Mr Tantrum submits this pre-condition is satisfied based on Ms Stark’s assessment that Mr Thorpe’s well-regulated decisions in custody will not endure when he in the community, exposed to high-risk situations and stressors.32 Ms Stark considered his offending following completion of treatment during his first period of imprisonment indicates his self-regulatory capacity is under threat while he is in the community.33 Mr Tantrum submits there is no evidence Mr Thorpe’s awareness of his sexuality increases his self-regulatory capacity when he is not in a relationship.
[38] Ms Vaili relies on Ms Stark’s assessment that Mr Thorpe’s acceptance of his bisexuality may be a protective factor and that his relapse prevention plan demonstrates clear positive copying strategies. She emphasises Mr van Rensburg’s assessment of Mr Thorpe’s breakthrough regarding his sexuality and that Mr Thorpe “has demonstrated an adequate self-regulating capacity in various areas of his life, which should assist him to desist from sexual offending in the future”.34
[39] Again, I find it difficult to extrapolate, from Mr Thorpe’s behaviour in custody, his behaviour when he is back in the community, without knowledge of the conditions he will face. Mr van Rensburg’s conclusion that Mr Thorpe’s self-regulating capacity
“should assist him” to desist from future offending does not negate Mr Thorpe having
32 At [24].
33 At [24].
a limited self-regulatory capacity in the community when exposed to high-risk situations and stressors, as Ms Stark posits.
[40] Mr Thorpe’s past offending in those circumstances indicates he had limited self-regulatory capacity for seven years in a 15 year period. It is possible his new awareness of his sexuality and risk factors and his stated determination to regulate his behaviour may now be successful. But that is untested. As Ms Stark noted in her evidence, Mr Thorpe’s high intimacy deficit and level of sexual deviance are likely to limit his attempts at self-regulation. On the evidence available to me, I conclude Mr Thorpe’s self-regulatory capacity is limited.
Issue 3: Does Mr Thorpe display a lack of acceptance of responsibility or remorse for his past offending or an absence of understanding for, or concern about, the impact of his offending on actual or potential victims?
[41] Mr Tantrum points to Ms Stark’s assessment that Mr Thorpe’s tendency to intellectualise his thoughts and feelings may stand in the way of fully experiencing and demonstrating his self-reported remorse. She noted in her first report he did not appear concerned about the impact of his offending on a victim with whom he subsequently formed a relationship when she was an adult.35 In her second report Ms Stark noted “an increased level of understanding”. Mr Tantrum submits it is open to me to find Mr Thorpe modified his response to Ms Stark after reading her first report, saying his relationship with a previous victim was wrong. He submits that shows Mr Thorpe knew what he did was wrong but could not stop himself from doing it and his behaviour demonstrated lack of insight into the victim’s vulnerability. He also says it is relevant that Mr Thorpe went on to reoffend after health assessors considered he had accepted full responsibility and gained some insight into his first offending.
[42] Ms Vaili submits Mr Thorpe accepts full responsibility and is genuinely remorseful for his past offending. Mr van Rensburg acknowledges Mr Thorpe’s acceptance of responsibility may be questioned given that he re-offended, but distinguishes accepting responsibility from desisting from offending. Mr van Rensburg suggests Mr Thorpe’s ongoing relationship with a female victim may be
grounds for questioning his judgment but does not undo his concern for his other victims and his understanding of the harm of his offending.
[43] Mr Thorpe has made statements to the psychologists indicating his acceptance of responsibility and remorse for his offending. Mr van Rensburg accepts Mr Thorpe’s subsequent re-offending provides grounds to question the genuineness of those expressions. But it is even more of a basis on which to question Mr Thorpe’s understanding of, and concern about, the impact of his offending on his previous victims. Grounds for questioning that was also evident in his response to Ms Stark as reported in her first report. Mr Thorpe is said to intellectualise matters. I consider his subsequently modified position is likely to be a response to reading her report about his initial response. I am satisfied Mr Thorpe displays an absence of understanding for, or concern about, the impact of his offending on actual or potential victims.
Issue 4: Is there a high risk Mr Thorpe will, in future, commit a relevant sexual offence?
[44] My conclusions on the issues above mean the required elements for me to find there is a high risk Mr Thorpe will, in future, commit a relevant sexual offence are satisfied. Mr Tantrum submits I should do so, based on Ms Stark’s report. Ms Vaili submits I should not, based on Mr van Rensburg’s report. It remains for me to step back and consider that question, as a matter of judicial judgment in applying the law to the facts.36
[45] I am conscious it can be difficult for an offender to overcome the effect of his or her past offending on perceptions of the risk of future offending. And the fact offenders considered for an ESO are necessarily recently in custody means it is difficult for them to demonstrate they have changed. Being in custody does not allow them much opportunity to do so. But that is the situation I must examine.
[46] Here, over a 15 year period, Mr Thorpe has previously engaged in offending against six children when he was socially isolated and opportunity presented itself. He went through treatment in his first period of imprisonment that appeared to be
successful yet he offended again. Now he has been through treatment again which appears to have been successful. While he is now 61, his last offending was committed at the age of 54 so it is not clear age will necessarily diminish his proclivity. His coming to terms with his own sexuality is likely to be beneficial to his mental state and may prove to be a protective factor. But that does not necessarily counteract the potential effects of being socially isolated and opportunity presenting itself in the future.
[47] As the Court of Appeal noted in Belcher, the coincidences of an offender’s state of mind and the circumstances providing an opportunity to re-offend will affect the risk of re-offending.37 I consider the various risk assessment tools cited by Ms Stark and Mr van Rensburg are consistent with Mr Thorpe being at high risk of reoffending when he is socially isolated and opportunity presents itself. In particular, offenders with the same VRS:SO score, using static and dynamic risk predictors, as those for which Mr Thorpe was assessed by Ms Stark, have been reconvicted in the 10 years following release at a rate of 17.3 per cent. The same score for Mr Thorpe assessed by staff at Te Piriti was 13.1 per cent, which remains in the medium-high risk category. Mr van Rensburg’s score, of 11.3 per cent, was at the high end of the moderate-low risk category.
[48] Such instruments can provide a misleading sense of precision in these assessments. Crucial, here, are the psychologists’ qualifications about the circumstances in which Mr Thorpe may re-offend. Ms Stark considers Mr Thorpe is likely to re-offend if he is socially isolated, not in an intimate relationship and able to gain access to children as he has previously.38 Mr van Rensburg considers Mr Thorpe’s ability to refrain from re-offending depends on him “enjoying fulfilling sexual relationships with adults”.39 He stated under cross-examination this was very important and if Mr Thorpe did not have satisfying sexual relationships with adults, the risk of reoffending increases. He agreed under cross-examination that lack of a long-term relationship, child pornography, access to vulnerable children and being in
an unstable social support network were risk factors.
37 Belcher, above n 14, at [91].
38 Stark Report, above n 22, at [27].
39 At [41].
[49] Ms Stark’s second report states Mr Thorpe will reside in a home supported by Prisoner’s Aid and Rehabilitation Society on release, for a period of three months. We currently do not know what circumstances Mr Thorpe will then settle into, the extent to which he will be socially isolated, enjoy sexual relationships with adults, have access to child pornography or to vulnerable children (which Mr van Rensburg, in his evidence, rather assumed he would not). On the basis of the evidence before me, I consider there is a high risk one or more of these conditions will be present.
[50] On the basis of the evidence currently before me, I consider there is a high risk Mr Thorpe will, in future, commit a relevant sexual offence. Accordingly, I consider he should be subject to an ESO from the date of this judgment. This will mean the standard conditions under s 107JA will apply (including the requirement to report in person to a probation officer as soon as practicable and not later than 72 hours after the commencement of the ESO).
Interim special conditions
[51] As noted above, Mr Tantrum originally applied for an ISO with 12 conditions. He also requested, under s 107IA, that those conditions be imposed as interim special conditions under the ESO if one is granted. That section provides I may only make such an order if satisfied there may not be sufficient time, before the ESO comes into force, for the Parole Board to determine which (if any) special conditions should be imposed on an offender.
[52] However, as explained above, Mr Thorpe was already subject to nine of the requested conditions as part of his parole post-release conditions which expire on 28
March 2018. In respect of those, I consider the Parole Board will have time to determine which of those should be imposed on Mr Thorpe.
[53] Since the ISO ceases to have effect when the application for an ESO is finally determined, which may be on issuance of this judgment (subject to any appeal), I order the three additional conditions imposed as part of the ISO be special conditions under s 107IA.
How long should an ESO last?
Law of duration of ESOs
[54] Section 107I(5) of the Act states:
(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.
[55] In Belcher in 2006 the Court of Appeal endorsed the High Court’s view in McIntosh that ESOs are made “for the minimum period required to achieve protection of vulnerable members of the community” which, there, was the maximum 10 year period.40 Similarly, in considering the more coercive PPOs in Chisnall in 2017, the Supreme Court found “it is necessary for the court to consider the least intrusive means of managing any risk posed by the person in respect of whom the order is sought”.41
The majority found that approach consistent with the public safety policy of the PPO
regime and the obligations under the Bill of Rights.42
[56] The Court of Appeal in R v Brown (Ruka) accepted the court is not concerned with ensuring the duration of an ESO is proportionate to the offences that have already been committed.43 But in R v Peta the Court said, in relation to that: 44
While the statement is correct as far as it goes, proportionality in relation to likely future offending is a relevant factor in setting the term of an ESO in the same way that there is an element of proportionality in deciding whether or not an ESO should be imposed (see the test enunciated above at para [8] [referring to the quote from Belcher at [51] above]. This follows from the reference in s 107I(5)(b) to the seriousness of the harm that might be caused to victims. The more serious the likely future offences, the more serious the harm would usually be to victims. We also note that the likely seriousness of future offences is usually best predicted by reference to past behaviour (as discussed below at para [45]).
40 At [108–[109], further cited by approval by the Court in R v Peta above n 12, at [11].
41 Chisnall v Chief Executive of the Department of Corrections, above n 2, at [37] and [83].
42 At [83].
43 R v Brown (Ruka) (2005) 22 CRNZ 233 at [51](b).
44 R v Peta, above n 12, at [10]–[11].
That said, the main focus in setting the term of any ESO must be on the safety of the community and, in particular, that of children and young persons, in light of the factors set out in s 107I(5).
[57] In 2016 the Court of Appeal in Alinizi considered “[w]here an offender categorically denies previous offending and consequently is unwilling to undertake treatment directed to the sexual offending, it would be open to a Court to direct an ESO of the full 10 year period.”45 There, it considered six years “should provide an adequate opportunity for the development of a safety plan with protective factors which would safeguard the community as well as providing a sufficient time for Mr Alinizi’s behaviour in the community to be monitored and assessed.”46
How long should Mr Thorpe be subject to an ESO?
[58] Mr Tantrum submits Mr Thorpe should be subject to an ESO for the maximum period of 10 years. He points to Mr Thorpe’s high level of risk of reoffending, the seriousness of the harm that might caused to victims of his reoffending and Mr Thorpe being completely untested in the community since receiving his last round of treatment. He submits 10 years would allow time for him to be supervised and managed to ensure his risk of reoffending is reduced.
[59] Ms Vaili emphasises the duration of an ESO must be the minimum period required for the purposes of the safety of the community. That is because ESOs are highly restrictive on liberty. She submits, relying on Peta, I must engage in a proportionality analysis, balancing community safety with Mr Thorpe’s interest in being free from interferences with his liberty. She notes Corrections can repeatedly apply for imposition of a new ESO in relation offenders currently subject to an ESO. She submits, if an ESO is imposed, it should be for a maximum of two years.
[60] I found the Crown’s application for an ESO of the maximum of 10 years too blithe an approach to the duration of this coercive instrument which breaches fundamental rights. I agree I am required, as stated by the Court of Appeal in Peta, to examine the proportionality of the duration of an ESO in relation to likely future
offending. That is the effect of the text of s 107I(5) and is reinforced by the Bill of
45 At [38].
46 At [40].
Rights. In particular, the minimum period required for the purposes of community safety must be proportionate to the likely duration of the risk of reoffending, recognised in s 107I(5)(c). Otherwise, the limits of an ESO on an offender’s individual right to liberty would not be reasonable or demonstrably justified in a free and democratic society and I would not have the power to so order, under s 3(a) of the Bill of Rights.
[61] I do not consider the maximum possible duration of 10 years for an ESO on Mr Thorpe would be the minimum period required for the purposes of the safety of the community in light of the required factors. I consider the appropriate minimum period is one which would provide Mr Thorpe the opportunity to settle in to the community and develop a lifestyle, habits and avoidance of risk factors that would significantly mitigate his risk of reoffending. I consider that period is three years. The restrictions imposed by the ESO should, hopefully, facilitate that to occur.
[62] If Mr Thorpe is still at high risk of re-offending after that period, at age 64, Corrections will be able to reapply for a further ESO. But I do not consider ordering an ESO now, of longer duration than that, would be proportionate with the risk I assess Mr Thorpe currently to pose, based on the evidence before me.
Result
[63] I order that Mr Thorpe be subject to an ESO for a term of three years from the date of this judgment.
[64] I order the three additional conditions I imposed as part of the ISO, as noted at paragraph [9] of this judgment, be interim special conditions of the ESO under s 107IA of the Act.
Palmer J
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