Douglas-Finch v Chief Executive of the Department of Corrections
[2024] NZHC 3508
•22 November 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-585 [2024] NZHC 3508
BETWEEN GLEN ANTHONY DOUGLAS-FINCH
Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 23 October 2024 Appearances:
C J Boshier for the Applicant
R J T George for the Respondent
Judgment:
22 November 2024
JUDGMENT OF HARLAND J
Introduction
[1] Since 10 January 2017, Glen Douglas-Finch has been subject to a public protection order (PPO), which was imposed under the Public Safety (Public Protection Orders) Act 2014 (the Public Safety Act).1 As is required under the Public Safety Act and upon application by the Chief Executive of the Department of Corrections (Chief Executive), in 2023 the Court reviewed and continued the PPO.2 Mr Douglas-Finch now applies to this Court for leave to further review the PPO under s 17 of the Public Safety Act.3
1 Chief Executive, Department of Corrections v Douglas [2016] NZHC 3184 [First PPO decision].
2 Chief Executive, Department of Corrections v Douglas [2023] NZHC 1085 [First PPO review].
3 Public Safety (Public Protection Orders) Act 2014, s 17(1) [Public Safety Act].
DOUGLAS-FINCH v THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2024] NZHC 3508 [22
November 2024]
[2] Mr Douglas-Finch was the first person in New Zealand in respect of whom a PPO was made, meaning the procedures under the Public Safety Act that apply to the making and review of PPOs have had to be looked at by courts without the benefit of prior precedent. This is not Mr Douglas-Finch's fault, but it has meant that the interpretation of the Public Safety Act has presented challenges. Some assistance in principle can be gained from the extended supervision order (ESO) regime, the most important being that the PPO and ESO regimes in the Public Safety Act have been declared to be inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990 (Bill of Rights).4
[3] In this case, an application for the first review of Mr Douglas-Finch's PPO by the Chief Executive was heard before Mander J who issued his judgment in respect of it on 8 May 2023.
[4] I have decided to dismiss the application and now provide my reasoning for doing so.
Background
Criminal offending
[5] Mr Douglas-Finch is 33 and has been subject to a PPO since he was 25. He has been diagnosed with autism spectrum disorder (ASD) and a level of intellectual impairment.
[6]Mander J summarised Mr Douglas-Finch’s offending history as follows:
[2] …As a 10-year-old, Mr Douglas-Finch was placed in the care of Mt Cargill Trust (Mt Cargill), which provides a residential disability support service for male children and adolescents. However, Mr [Douglas-Finch] continued to display what has been described as an extensive pattern of premediated and predatory sexual behaviour towards other boys, despite supervision and having a teacher's aide with him at all times. It was while at Mt Cargill that Mr [Douglas-Finch] used lapses in supervision to make sexual contact with the victim of his 2006 offending, whom he repeatedly requested to engage in penetrative sexual activity until the victim acquiesced.
4 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484. The Supreme Court granted leave to appeal, with judgment pending: Attorney-General v Chisnall [2022] NZSC 77.
[3] Mr [Douglas-Finch’s] involvement with this victim resulted in him being convicted of two charges of sexual connection with a young person aged between 12 and 16 years. He was sentenced to intensive supervision. In 2009, he breached the conditions of that sentence. At that time, he was living in Davin Healthcare accommodation under intensive 24-hour supervision. He attended the STOP programme but made no progress and accessed pornography when the opportunity arose. It is recorded that, in June 2011, he contacted an associate and requested he bring him child pornography in exchange for sexual contact. He was evicted from Davin Healthcare and returned to his mother's house.
[4] In December 2011, he was convicted on a charge of common assault that occurred at a public swimming pool. This was reported to have been committed in circumstances that indicated a sexual motivation. He was fined. In mid-2013, at the age of 22, he made contact with a 13-year-old boy, using false details. He began sexual offending against the boy in a manner that included oral sex and anal intercourse. This resulted in two further convictions for sexual connection with a young person aged between 12 and 16 years. Shortly thereafter, he was also convicted on 11 charges of possessing an objectionable publication. He was sentenced to three years' imprisonment for the offending against the 13-year-old boy.
The PPO and the reviews
[7] When the initial application for a PPO was made in respect of Mr Douglas- Finch in 2016, there was also an application for an ESO with intensive monitoring provided as an alternative. Despite finding a case had been well made for the less restrictive ESO regime, Nicholas Davidson J found the need for the protection of potential victims was the most important consideration. He therefore imposed a PPO, acknowledging the decision to do so had been a difficult one.
[8] Importantly, at the end of his decision, after noting that Parliament has made it clear that a PPO is consistently to be under review and having referred to ss 4 and 15– 18 of the Public Safety Act, Davidson J said:5
[152] These provisions demonstrate very clearly that the magnitude of a PPO is recognised by a constant process of review as to whether it remains justified, and whether the management plan remains appropriate. The court is involved at five-year intervals, if not earlier.
[153] ... It is not by any means certain that it [the PPO] will remain in force a lengthy time. It responds to Mr Douglas as he presents today. It may be harder under a PPO to achieve meaningful progress in treating and helping Mr Douglas, but if his response under that regime warrants reconsideration then the path is marked by the legislation. Only to some degree is this in his hands as he suffers from deficits in his behaviour and thinking which are not his
5 First PPO decision, above n 1.
fault, but a product of the multiple physiological and psychological influences on him.
[9]In relation to the Bill of Rights consequences, Davidson J said:6
[154] ... The very idea of containment other than under sentence, albeit in purpose built accommodation, is inherently troublesome. It is reserved for those cases where there is really no option, to avoid the very high, serious, and imminent risk posed by an individual. Mr Douglas does pose that risk. He may not do so after treatment, and the passage of time, and under the required reviews the PPO may no longer be considered necessary.
[10] This Court reviews the continuing justification of a PPO every five years on application by the Chief Executive. At the last Court review, Mander J found Mr Douglas-Finch continued to exhibit a severe disturbance in behavioural functioning, as described in s 13(2) of the Act, and there remained a “very high risk of imminent serious sexual offending.7 Mr Douglas-Finch has appealed the judgment of Mander
J. The Court of Appeal has heard the appeal but a decision in respect of it has not yet issued.
[11] As well as the requirement for a five-yearly review by the Court, at the application of the Chief Executive, the continuing justification for a PPO must be reviewed annually by the Public Protection Orders Review Panel (the Panel).8 The Panel is able to direct the Chief Executive to apply to this Court for a review of the PPO if it considers there may no longer be a very high risk of imminent serious sexual offending.9
[12]If no such direction is given, under s 15(3)(a) and (b) the Panel:
(a) must review the management plan of the resident to ascertain whether the plan continues to be appropriate; and
(b) may make any recommendations to the manager of the residence in which the resident is required to stay.
[13] On 7 May 2024, the Panel concluded there was no basis to find Mr Douglas- Finch did not present a very high risk of imminent serious sexual offending.
6 First PPO decision, above n 1.
7 First PPO review, above n 2, at [154].
8 Public Safety Act, s 16(1).
9 Section 15(1)–(2).
Legal framework
Section 13 of the Public Safety Act provides:
Court may make public protection order
(1) After considering all of the evidence offered in a proceeding on an application for a public protection order, and, in particular, the evidence given by 2 or more health assessors, including at least 1 registered psychologist, the court may make a public protection order against the respondent if the court is satisfied, on the balance of probabilities, that—
(a)the respondent meets the threshold for a public protection order; and
(b)there is a very high risk of imminent serious sexual or violent offending by the respondent if,—
(i)where the respondent is detained in a prison, the respondent is released from prison into the community; or
in any other case, the respondent is left unsupervised.
(2) The court may not make a finding of the kind described in subsection (1)(b) unless satisfied that the respondent exhibits a severe disturbance in behavioural functioning established by evidence to a high level of each of the following characteristics:
(a)an intense drive or urge to commit a particular form of offending:
(b)limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties:
(c)absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims (within the general sense of that term and not merely as defined in section 3:
(d)poor interpersonal relationships or social isolation or both.
[15]Section 17 provides:
17 Application for review by person subject to public protection order
(1) A person who is subject to a public protection order may, with the leave of the court, apply to the court for a review of the order.
(2) As soon as practicable after an application is made under subsection (1), the chief executive must advise every victim of the person subject to the public protection order that the application has been made.
[16] Both parties are agreed that the test applied by Dunningham J to an earlier application by Mr Douglas-Finch for leave to review remains applicable.10 Her Honour held:
[18] I accept that the circumstances in which leave should be granted are not constrained in any way. The threshold for the review panel to direct the chief executive to apply to the court for a review of the order is where it considers “there may no longer be a very high risk of imminent serious sexual or violent offending”.11 The word “may” indicates the review panel does not have to reach a firm view, there simply needs to be a real possibility on the evidence, that the threshold is reached.
[19] In deciding whether to grant leave the court must consider the same threshold. Whether or not there has been error by the review panel, there must be evidence capable of supporting a finding that the very high risk of imminent offending is no longer met. If that threshold is reached, the court, like the review panel, must exercise its discretion as to whether to direct an application for review. Factors to take into account would include the strength of the evidence suggesting the statutory criteria are no longer met (a mere scintilla of evidence to suggest a change would point against review proceeding), and whether the evidence relied on has already been considered by the court but rejected.
[17] I adopt this approach, adding to it that the important principle affirmed in Chisnall that the PPO regime is a marked departure from the legal order reflected in s 26(2) of the Bill of Rights that has not been found to be justified under s 5.12
The case for leave to review
[18] As outlined above, the Panel reviewed Mr Douglas-Finch's PPO under s 15 of the Public Safety Act and issued its decision in respect of it on 14 May 2024. The review was Mr Douglas-Finch's sixth review conducted by the Panel.
[19] The Panel reviewed a report prepared by Dr Singh-Pillay, a registered counselling psychologist employed by the Department of Corrections. Mr George was also counsel for Mr Douglas-Finch at that review. He advanced submissions that, on the basis of Dr Singh-Pillay's report, Mr Douglas-Finch might no longer pose a very high risk of imminent serious sexual offending and therefore the Panel should direct the Chief Executive to apply to the High Court for another review of the PPO under s
10 Douglas v Chief Executive of the Department of Corrections [2020] NZHC 1107 [Leave decision].
11 Public Safety Act, s 15(2).
12 Chisnall v Attorney-General, above n 4, at [218] and [226].
16 of the Public Safety Act, despite the fact that such a review had been recently determined by Mander J.
[20] Despite the matters referred to in Dr Singh-Pillay's report, the Panel decision was unanimous there remained at very high risk of imminent serious sexual offending by Mr Douglas-Finch if he is left unsupervised. The Panel therefore declined to direct the Chief Executive to apply to this Court for a review ahead of the next five yearly review.
[21] The application for leave to review under s 17(1) was therefore filed and the report of Dr Singh-Pillay is relied upon here. The issue is whether it provides sufficient evidence to support a finding that Mr Douglas-Finch may no longer pose a very high risk of imminent serious sexual offending (the threshold test) and, if so, whether this Court should exercise its discretion to grant leave to apply for a further Court review of the PPO.
[22] For Mr Douglas-Finch, Mr George submits the Court must look to the pre- requisite characteristics under s 13(2) of the Act to determine whether Mr Douglas- Finch still poses a “severe disturbance in behavioural functioning”. He submits the report establishes that Mr Douglas-Finch does not currently exhibit poor interpersonal relationships or social isolation (or both), as s 13(2)(d) requires, and therefore this Court should order a review of the PPO.
[23] For the Crown, Ms Boshier accepted that Dr Singh-Pillay’s report affirms Mr Douglas-Finch has made positive progress in his social relationships, but she submits these improvements do not meaningfully diminish his risk profile, especially when considered in light of the Court of Appeal’s findings about “protective” and “animating” characteristics.13
13 McIntosh v Chief Executive of the Department of Corrections [2021] NZCA 218 at [22].
Has the threshold for leave been met?
The evidence
[24] When dealing with Mr Douglas-Finch's recent behaviour, Dr Singh-Pillay referred first to his relationships with others. She footnoted reference to research and noted that, although social skills improve with age for many individuals with ASD, symptoms of ASD continue into middle adulthood and compose ongoing challenges to initiating and maintaining relationships.
[25] Mr Douglas-Finch consented to protected communications and privileged information being used by Dr Singh-Pillay, meaning she was able to incorporate treatment information in her report she states may not have previously been before the Court.
Interpersonal relationships (s13(2)(d))
[26] Mr Douglas-Finch told Dr Singh-Pillay that he is in a committed relationship with a 52-year-old male residing at Tōruatanga, an ESO residence on prison grounds that operates “outside the wire”. As a Matawhāiti resident, Mr Douglas-Finch is able to visit his partner each week. Mr Douglas-Finch and his partner became engaged in November 2023 and plan to marry in March 2025. Mr Douglas-Finch described his relationship as a good and supportive one in which he feels loved and cared for.14
[27] Mr Douglas-Finch is considered to demonstrate better empathy, has become more considerate of other people and appears to cope better with some day-to-day activities.
[28] The staff linked much of Mr Douglas-Finch's social improvement to the training and education he has received from Autism New Zealand. Dr Singh-Pillay said:
… He can therefore differentiate components of his behaviour that are characteristic of his autism. Mr Douglas-Finch also disclosed that through his interactions with a marriage counsellor, he was learning clearer
14 Staff at Matawhāiti have raised concerns regarding this relationship due to the fact both men are sex offenders and neither has experienced a healthy adult relationship before.
communication, specifically in relation to his partner. He believes that since learning his new skills, he has learnt to better interact with most people. He furthermore noted that when he feels angered or frustrated (usually by double standards) within the relationship, he has recognized the value of time apart from his partner.
[29] Staff also reported that Mr Douglas-Finch was generally more sociable and has:
(a) participated in numerous scheduled group activities;
(b) good relationships with staff and other residents; and
(c) good relationships with some family members and other friends, including Tōruatanga residents.
Capacity to self-regulate (s 13(2)(b))
[30] Dr Singh-Pillay next referred to Mr Douglas-Finch's ability to self-regulate. She noted this appeared to be mixed, although he was generally considered to have been far less impulsive in the last year. However, she referred to some examples of impulsivity and inappropriate behaviours. For example, on 23 May 2023, Mr Douglas-Finch borrowed a DVD from the library that portrayed a semi-nude young boy on the cover. He attempted to conceal this item in his cell. Despite discussing this incident with staff, on 13 July 2023, Mr Douglas-Finch was caught reading online erotic fiction, some of which involved teenagers.
[31] Dr Singh-Pillay said these incidents suggest a lack of insight by Mr Douglas- Finch into his offending pathways and a continuance of his observed deceptive behaviours. Even in a highly structured environment, Mr Douglas-Finch’s focus on sexual gratification continues to trump what he has recently learnt.
[32] However, to balance this fairly, Dr Singh-Pillay noted there have been times when Mr Douglas-Finch has applied his learnt strategies to avoid dangerous situations, such as when he came across two teenagers on an escorted outing in 2023. While describing his response to this as positive, she noted the outings have had all occurred in the presence of staff.
[33] Although Mr Douglas-Finch had made considerable gains, Dr Singh-Pillay concluded that, overall, although genuinely well intentioned, Mr Douglas-Finch's self- regulation, specifically in relation to his sexual behaviour, was primarily determined by external controls.
Intensive drive to commit particular type of offending (s 13(2)(a))
[34] Dr Singh-Pillay next assessed Mr Douglas-Finch's sexual behaviour with reference to his past behaviour and in light of other specialist assessment reports. She concluded that, despite his engagement in an adult relationship, he appeared acutely aware of his inability to regulate his deviant sexual interests independently but appeared motivated to use external controls to ensure positive changes over the long term.
[35] It was noted that Mr Douglas-Finch has been on many escorted community outings since 19 September 2022, was not a flight risk and was overall very compliant with his supervisors, which was described as meaningful. There had been appropriate changes in his behaviour observed over the last year, with some lapses.
[36] As to whether Mr Douglas-Finch was able to demonstrate attitudes that contributed to his offending, Dr Singh-Pillay said he had "exhibited areas of strength and evidenced new skills", particularly in his social interactions and his increasing consideration of others. But she noted his patterns of behaviour in relation to hyper- sexuality and deviant sexual fantasies remained.
[37] Dr Singh-Pillay then outlined the treatment that had been provided to Mr Douglas-Finch since 2006. This has included participation in the STOP adolescent community-based programme (when he was 15 years old) and attendance at the Kia Marama Special Treatment Unit (between 2014 and 2015), from which he was exited. Since he has been residing at Matawhāiti and between November 2017 and June 2023, Mr Douglas-Finch has engaged in 62 sessions with a departmental psychologist. Mr Douglas-Finch considers he has graduated from treatment and now engages in monthly booster catch up sessions. In 2023, Mr Douglas-Finch's treatment goals were readjusted to primarily support him with safety planning for escorted outings.
[38] Dr Singh-Pillay referred to the treating department psychologist (Ms Richards) who considers that Mr Douglas-Finch has, over time, demonstrated increased engagement and transparency and has been able to demonstrate increased social skills and understanding, but he continues to struggle to apply what he has learnt in new situations. In other words, he tends to understand concepts intellectually rather than intrinsically and, although he can learn concepts, he does not retain what he has learnt in the long term.
[39]Dr Singh-Pillay said:
43. In relation to offence specific gains, Ms Richards (2024) considered Mr Douglas-Finch to have a good understanding of his offending pathways and warning signs, however, still appeared to default to sexually deviant thoughts. As such, although there has been a decrease in sexual preoccupation, treatment gains in this area are limited. Although Mr Douglas-Finch appears to have an intellectual understanding that his offending is wrong, he tends to generally hold a diminished capacity to understand the emotional experiences of others. As a result, he lacks the ability to experience empathy to the extent where it may serve a protective function.
44. In summary, Mr Douglas-Finch is currently still engaged in treatment sessions, which has been adapted, as recommended by the report of C. Fon (July 2023). The focus has shifted more on the management of typical everyday situations, (as opposed to a sexual offence focus) as well as educating and coaching staff on how to understand and best manage Mr Douglas-Finch's behaviours. Although there have been some positive general gains noted, there appears to be no indication that Mr Douglas- Finch is likely to benefit any further from ongoing offence-specific treatment.
[40] Next, Dr Singh- Pillay assessed the clinical factors relevant to risk and assessed Mr Douglas-Finch's potential to reoffend. She administered the Violence Risk Scale: Sexual Offender version (VRS:SO) and the STATIC-99R, a ten-item measure assessing static risk factors empirically identified as predictive of sexual recidivism. Mr Douglas-Finch was placed in the Level IVb (well above average) category in both tests. For the STATIC-99R, 99.7 per cent of the normative sample scored lower than him. This result is the same as the one obtained when Mr Douglas-Finch was last assessed in 2021. In terms of the VRS:SO, Mr Douglas-Finch received a 33.9 per cent estimated sexual recidivism score projected for five years and 47.9 per cent for ten years, with 11.9 per cent and 18.2 per cent being the base rate for all sex offenders in the normative sample (derived from a prison-based sample). Dr Singh-Pillay noted
that persistent sexual deviance (which is as evident from Mr Douglas-Finch’s pattern of offending) has emerged as a strong predictor for sexual recidivism.
[41] Dr Singh-Pillay also utilised the Child Pornography Offender Risk Tool (CPORT), with Mr Douglas-Finch presenting the same score as 6% of individuals that engaged with child pornography, while 94% scored lower.
[42] In summary, Dr Singh-Pillay concluded that there remains a “very high” risk of Mr Douglas-Finch committing a further sexual offence if placed back in the community and the risk was higher in relation to child sexual abuse offences.
Summary of s 13 risk factors
[43] Dr Singh-Pillay next addressed the risk issues relevant to ss 13(1) and (2) assessment. She said:
(a) Imminence of re-offending: Mr Douglas-Finch remains at “very high risk” of reoffending. She referred to his hypersexuality, deviant sexual interest and impulsivity, with such behaviours manifesting even while supervised. If released into the community, she said he is highly likely to engage in serious offending should the opportunity present itself.
(b) An intense drive or urge to commit a particular form of offending: Mr Douglas-Finch retains a sexual interest in children and his offending is underscored by a “single minded focus on sexual gratification”. In the July 2023 report, he self-disclosed that he continued to masturbate to “deviant imagery” and that if sex with someone “old enough” was not “good enough” he would “get a child”. Treatment has not led to a significant decrease in his sexual drive and hypersexuality, with Dr Singh- Pillay concluding he continues to possess intense urges to commit deviant sexual offences with male children and is very likely to act on this preference if provided with the opportunity to do so.
(c) Limited self-regulatory capacity: Mr Douglas-Finch presents with high and complex needs which affect his ability to internalise and apply strategies to avoid further offending. He is yet to consistently apply these
strategies without the assistance of Matawhāiti staff, and his ability to independently cope remains untested. He has acknowledged, were it not for the PPO, that “deviant sexual offending would likely have recurred”. Mr Douglas-Finch's ability to self-regulate is considered to be “primarily determined by external controls”. On a positive note, he is said to be “acutely aware” of his inability to regulate his deviant sexual urges independently and is “currently motivated to use external controls to ensure positive changes over the long term”.
(d) Absence of understanding or concern for the impact of offending: in keeping with ASD features, the extent to which Mr Douglas-Finch experiences empathy is unlikely to be a protective feature. There is a significant absence of meaningful understanding and concern for any potential victim.
(e) Poor interpersonal relationships or social isolation or both: despite an enduring pattern of poor personal relationships, he appears to be making a “concerted effort” to develop further support, evidenced by his relationships with family, his intimate partner, friends at Tōruatanga, the Salisbury Foundation, staff at Matawhāiti and residents. He is making an effort to improve his communication skills with the help of Autism NZ.
[44]In summary, Dr Singh-Pillay said:
63. …Mr Douglas-Finch continues to exhibit imminence of offending, displays a strong urge to commit deviant offences, has limited self- regulation and lacks understanding in relation to the impact of his offending. These features remain present at a high level. His level of interpersonal relationships has however, improved significantly from past functioning.
[45] Dr Singh-Pillay then addressed the possibility of a less restrictive environment being provided for Mr Douglas-Finch. She specifically considered the option of him residing at Tōruatanga. Noting that Tōruatanga operates a 24-hour, seven day a week roster, as Dr Singh-Pillay said, it is not a secure facility. Her opinion is that Mr Douglas-Finch would struggle without external monitoring and oversight and that, if relocated to Tōruatanga, he would need to be the subject of intensive monitoring.
[46] Recognising Mr Douglas-Finch's difficulties, Dr Singh-Pillay's opinion was that his risk profile is likely to endure. She said:
65. … Treatment change that has occurred, or could reasonably be further envisaged, is unlikely to meaningfully enhance Mr Douglas-Finch's capacity for internal risk management, which implies an ongoing reliance on monitoring and restriction to mitigate lapses to offending (and, as opportunities enhance, likely serious harm). It is envisaged that his risk profile is therefore unlikely to change until age mitigation occurs (in his late 50s). In a less securely monitored environment, Mr Douglas-Finch will be provided with an opportunity to be tested in a naturalistic setting (such as less intensive attention and a routine that does not primarily focus on him). However, it is likely that more [offence analogue behaviour] lapses will occur, and increased opportunities may see lapses that include more serious offending (and associated harm). If a shift to Tōruatanga is considered as a feasible option, then careful planning and sufficient lead time would be required to effect this change.
[47] Dr Singh-Pillay then noted that pro-social connections and professionally provided support would be protective factors for Mr Douglas-Finch and a little at odds with her earlier opinion, she said that:
66. … Other areas that Mr Douglas-Finch could focus on developing further that may be protective in the future include: his internal capacity (with specific reference to his coping and self-control); and his prosocial identity (through prosocial sexual interests and identity, life goals, and motivation for managing risk).
[48]Finally, Dr Singh-Pillay said:
67. … However, it is the writer's opinion that Mr Douglas-Finch continues to remain at a very high risk for future sexual offending which is being mitigated through continued extensive external monitoring and supervision. As a result, consideration of a less restrictive environment such as Tōruatanga with IM [intensive monitoring], appear to be in Mr Douglas-Finch's best interests and a likely sequential step in this process. This option is likely to afford Mr Douglas-Finch an opportunity to demonstrate his learnings over the years and transition with firm scaffolding in place to a facility that is less controlled, and likely to yield the least harmful consequences.
Analysis of characteristic s 13(2)(d)
[49] In the last PPO review, Mander J found there could be “no real dispute that Mr [Douglas-Finch] continues to exhibit…poor interpersonal relationships or social
isolation to a high level”, with the trait found to be present to a high level.15 With reference to Dr Singh-Pillay's evidence, I acknowledge that Mr Douglas-Finch has made significant progress addressing this characteristic recently. I say "significant" but the reference point for this finding is the starting point for Mr Douglas-Finch articulated by Mander J.
[50] Section 13(2) requires each of the characteristics outlined in subs (2) to be established by evidence to a high level; all of those characteristics being necessary for the Court to assess before it can find that a respondent exhibits "a severe disturbance in behavioural functioning". Mr George's argument is that there is sufficient evidence in Dr Singh-Pillay's report to justify the Court granting leave for a further review ahead of the statutory five-year review. Following the approach taken by Dunningham J, the question I must ask myself is whether there is a real possibility on the evidence that the high-level threshold in relation to the characteristic in s 13(2)(d) is reached.
[51] In this case, I am not satisfied that there is a real possibility on the evidence that the threshold has been reached to justify the granting of leave. In my view, Dr Singh-Pillay's report, when read as a whole, conveys this message, not only because the changes that have been made are relatively recent but also because, as I have outlined, my interpretation of "significant progress" is framed by the starting point articulated by Mander J, a finding that was made relatively recently.
[52] But, in case I am wrong about this, I address the Chief Executive's argument that the Court of Appeal decision in McIntosh v Chief Executive of the Department of Corrections assists.16
[53] McIntosh introduced the concept of protective and animating characteristics, albeit in the context of an ESO. This required consideration of s 107IAA of the Parole Act 2002 which states:
15 First PPO review, above n 2, at [47]–[50].
16 McIntosh v Chief Executive of the Department of Corrections, above n 13.
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.
[54] Dunningham J, in the first instance, found that while Mr McIntosh had acquired a degree of understanding about the impact of his offending and showed some remorse, she was not satisfied that “the remorse and the concern were…at a point where they would act as a protective factor against potential or future victims”.17 With that finding, her Honour found the criteria at s 107IAA(1)(d) to be met.
[55] On appeal, counsel for Mr McIntosh argued that Dunningham J had applied the wrong test.18 Here, Mr George advances a similar proposition. He submits that the Court can only make a finding that Mr Douglas-Finch exhibits a severe disturbance in behavioural functioning by establishing the presence of the criteria at s 13(2)(a)– (d), stressing that the assessment is not whether he poses a very high risk of committing further sexual offending in the community.
[56] In rejecting counsel's submission,19 the Court of Appeal in McIntosh divided the factors listed in s 107IAA(1) into “animating” and “protective” categories, with intense drive/desire to commit a sexual offence and predilection for sexual offending described as “animating” and limited self-regulation, lack of acceptance of responsibility or remorse and absence of understanding or remorse as “protective”.20
17 Chief Executive, Department of Corrections v McIntosh [2020] NZHC 3184 at [45].
18 McIntosh v Chief Executive of the Department of Corrections, above n 13, at [26].
19 At [26].
20 At [22].
[57]The Court of Appeal agreed with Dunningham J’s reasoning, finding:21
Offenders who present a high risk of committing a relevant sexual offence will not have the protective characteristics described in s 107IAA(1)(d). This is consistent with the statutory wording which speaks of “a lack of” and “an absence of” these protective characteristics. However, the absence (or lack) of these characteristics are indicia of high-risk offenders only because these protective characteristics mitigate this risk. The focus must therefore be on whether the acceptance of responsibility, remorse, understanding or concern are material in the given case in the sense that they are present to a sufficient degree to mitigate the relevant risk. Parliament cannot have intended that any degree of presence of these protective characteristics (no matter how limited and whether or not in any way operative to mitigate the risk), would preclude a person from being assessed as being at high risk. Such an interpretation would plainly be inconsistent with the statutory purpose of public protection.
(emphasis added).
[58] The Court of Appeal referred to Mr Douglas-Finch’s first PPO decision, where Nicholas Davidson J referred to s 13(2) of the Act:22
[83] In my view the lack of, or deficit in understanding or concern must be at such a level as to fit the plain purpose of the Act in this respect, namely to identify whether the usual behavioural and psychological checks on a potential offender will not apply, because for example, there is no sufficient understanding or concern for the effect of the criminal act on a victim.
…
[89] …an ‘absence of understanding or concern … means that any understanding or concern is so distorted, superficial and self orientated, that it marries with the clear purpose of the legislation, that the checks and balances inherent in the combined and individual characteristics in s 13(2) are not operative to negate the risks which derive from those characteristics.
[59] Further, the Court of Appeal noted the evidence need not show that the factor at issue would negate the risk of offending or prevent future offending, finding that this would set the bar too high. Rather, the question was whether the factor would be “protective” or would “operate materially to reduce the risk”.23
[60] This position was adopted by Mander J in Mr Douglas-Finch’s previous Court review. The Judge found all characteristics to be present, but at issue then was whether Mr Douglas-Finch exhibited an absence of understanding or concern for the impact of
21 McIntosh v Chief Executive of the Department of Corrections, above n 13, at [23].
22 At [24], citing First PPO decision, above n 1, at [83] and [89].
23 At [28].
his actions on victims to a high level, per s 13(2)(c). There, as is the case here, the Crown accepted that some level of mitigation was present, but, nonetheless, the understanding or emotional concern that existed was not of a type that would realistically mitigate the risk of offending.24
[61] Mander J cited Nicholas Davidson J’s finding that any understanding or concern that was present was “inoperative as a check on his further offending”.25 He said:26
Despite Mr Bailey's critique of the approach adopted by the Court of Appeal in McIntosh, and subject to the potential effect of the same Court's subsequent finding that the ESO and PPO regimes are not NZBORA compliant, its endorsement of Davidson J's analysis would oblige me to adopt the same course. The requisite absence of understanding or concern by Mr Douglas for the impact of his offending on victims (actual or potential) is required to be assessed on the basis of the protective effect of any understanding or concern that could materially bear on his risk of reoffending.
Proceeding on that basis, I do not consider the Court is prohibited from taking into account the compulsivity of a respondent to sexually offend or the strength of the person's impulse or urge to do so. If it is accepted, as it has been by the Court of Appeal, that the absence of this characteristic is to be assessed in the context of the protective effect of what understanding or concern a particular respondent may be able to exhibit, it will be necessary to have regard to other evidence that bears on the efficacy of that understanding or concern to deter reoffending.
[62] Cross reference between the Parole Act and the Public Safety Act for the purposes of interpretation is not new, with the Court of Appeal referring to s 13 of the Public Safety Act in its ESO decision McIntosh as the “comparable provision”.27 Further the approach taken in McIntosh has been approved in the PPO context by this Court in Mr Douglas-Finch's review before Mander J.28
[63] The interpretation advanced by Mr George is not workable with the objective of the Act “to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences.”29
24 First PPO review, above n 2, at [63].
25 At [66], citing First PPO decision, above n 1, at [96].
26 At [78].
27 McIntosh v Chief Executive, Department of Corrections, above n 13, at [24].
28 First PPO review, above n 1, at [77].
29 Public Safety Act, s 4.
[64] While there is some discrepancy between the Parole Act and Public Safety Act wording in each provision and what they require30, both sections may have their parts divided into “animating” and “protective” characteristics, with s 13(2)(a)–(b) being animating and (c)–(d) being protective. The reasoning used by Dunningham J and affirmed in the Court of Appeal in relation to the ESO criteria applies here.
[65] Ultimately, I must be satisfied that some evidence has been presented that suggests Mr Douglas-Finch may no longer be a very high risk of imminent serious sexual offending. In terms of each of the s 13(2) characteristics, the question is whether the protective characteristics are present to a degree so as to “have [an] operative effect on [the] risk of reoffending”.31
[66] While Dr Singh-Pillay’s report acknowledges Mr Douglas-Finch’s social improvement, it is also clear that he still presents as someone with a severe disturbance in behavioural functioning. The report, largely relied on by Mr George to grant leave, specifically notes the changes reported do not “meaningfully diminish his risk”.
[67] I do not agree with Mr George’s submission that Dr Singh-Pillay’s report suggests a Public Safety Order (PSO) is an appropriate way to manage Mr Douglas- Finch yet. The report notes:
…it is envisaged [Mr Douglas-Finch’s] risk profile is…unlikely to change until age mitigation occurs (in his late 50s). In a less securely monitored environment, Mr Douglas-Finch will be provided with an opportunity to be tested in a naturalistic setting (such as less intensive attention and a routine that does not primarily focus on him). However, it is likely that [offence associated behaviour] lapses will occur and increased opportunities may see lapses that include more serious offending (and associated harm). If a shift to Tōruatanga is considered as a feasible option, then careful planning and sufficient lead time would be required to effect this change.
…it is the writer’s opinion that Mr Douglas-Finch continues to remain at very high risk for future sexual offending which is being mitigated through continued extensive monitoring and supervision. As a result, consideration of a less restrictive environment such as Tōruatanga with [intensive monitoring], appear to be in Mr Douglas-Finch’s best interests and a likely sequential step in this process…
30 Under s 13(2) of the Public Safety Act, the Court must be satisfied that “the respondent exhibits a severe disturbance in behavioural functioning established by evidence to a high level of each of the following characteristics”. The Parole Act only requires the Court to be “satisfied” of each characteristic.
31 First PPO review, above n 2, at [98].
(emphasis added).
[68] The report seems to acknowledge that placing Mr Douglas-Finch at Tōruatanga is looking more likely, and could be a next step for him, but suggests it inappropriate due to his status as someone at high-risk of future sexual offending.
[69] Putting the report to one side, there is no evidence to suggest Mr Douglas- Finch no longer presents a high risk of offending. His risk score on the STATIC-99R remains “well above average” and his VRS:SO is also the same, notably showing limited treatment gains as he received the same score in 2018. The incidents discussed in 2023, while contextually minor, occurred in a highly structured and offence deterring environment which does not bode well should there be any loosening of the restrictions that currently help to mitigate the risks.
[70] There is insufficient evidence to establish that the s 13(2)(d) characteristic is sufficiently protective to justify leave to review being granted. I find that threshold for leave has not been met.
Timing of five-yearly review
[71] To affirm my view, and to clarify a matter that neither counsel before me at the hearing were sure about, I now provide what I hope to be some assistance about the mechanics of review.
[72]Section 16 of the Act provides:
16 Application by chief executive for review of public protection order
(1) During the currency of a public protection order, the chief executive must apply to the court for a review of the continuing justification of the order—
(a)within 5 years after the order is made; and
(b)then, within 5 years after the first review; and
(c)then, at intervals of not more than 5 years; and
(d)whenever the review panel directs the chief executive to apply.
(2) Despite subsection (1)(c), the court may direct that the chief executive apply for any subsequent reviews at intervals of not more than 10 years.
(3) For the purpose of calculating any period specified in subsection (1) or (2), if the court grants leave for an application under section 17, the period is suspended until the application is determined or withdrawn.
(4) As soon as practicable after an application is made under subsection (1), the chief executive must advise every victim of the person subject to the public protection order that the application has been made.
(emphasis added)
[73]It is unclear which of the following options apply:
(a) the Chief Executive applies for a review within five years of the order becoming operative, and then each review following the initial must be applied for within five years of the result of the application; or
(b) the Chief Executive applies for a review within five years and is then required to apply for a review every five years following that date, regardless of how recently the decision from the prior application was handed down.
[74] The wording of the statute best lends itself to interpretation (b)—“the Chief Executive must apply to the court for a review of the continuing justification of the order…at intervals of not more than 5 years”.32 The provision is concerned with the actions of the Chief Executive, not the Court. The Chief Executive is to apply “within 5 years after the order is made”,33 “within 5 years after the first review” and then at intervals of not more than 5 years.
[75] Setting the clock from the date of the application for review is the most rights- consistent approach. It would be unjust for Mr Douglas-Finch’s opportunities for the Court to review his order to hinge on matters that are completely out of his hands, such as how long the courtroom process takes, the length of time by any given Judge to author their decision, the appellate process and any other factor between the date of application and its conclusion.
32 Public Safety Act, s 16(1)(c).
33 In the first PPO review, above n 2, at [18], Mander J clarified that the five years from when the order is made runs from when the order becomes operative, not when it is imposed.
[76] With that in mind, and assuming s 16(3) does not come into play, the Chief Executive must apply for this Court’s review by no later than 22 December 2026.34
Result
[77]Mr Douglas-Finch’s application for leave to review the PPO is dismissed.
Harland J
Solicitors:
Crown Solicitors Office, Christchurch Andrew Bailey, Barrister, Christchurch.
34 The most recent review application date being 22 December 2021.
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