Douglas v Chief Executive of the Department of Corrections
[2020] NZHC 1107
•25 May 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2016-409-000693
[2020] NZHC 1107
BETWEEN GLEN ANTHONY DOUGLAS
Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 18 May 2020 Appearances:
A J Bailey for Applicant
C J Boshier for Respondent
Judgment:
25 May 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 25 May 2020 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 25 May 2020
[1] The applicant, Mr Douglas, is subject to a public protection order (PPO). It was imposed under Public Safety (Public Protection Orders) Act 2014 (the Act) and came into effect on 10 January 2017.1 As required by the Act, a review panel has regularly reviewed the need for the PPO to be maintained. The last review occurred in October 2019. The panel reached a “firm view” on the continuing risk posed by Mr Douglas. It declined to direct the chief executive to apply to the court for a review of the PPO under s 16 of the Act.
1 Chief Executive of the Department for Corrections v Douglas [2016] NZHC 3184.
DOUGLAS v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 1107 [25 May 2020]
[2] Mr Douglas has now applied to the court for a review of the PPO under s 17 of the Act. To proceed, he requires the leave of the court.2 This decision considers whether leave should be granted.
Background
[3] Mr Douglas is now 28 years old. He is diagnosed as having autism spectrum disorder (ASD) as well as a degree of intellectual impairment. Since childhood he has demonstrated a propensity for initiating inappropriate sexual contact with other young people. He was placed in care when he was only 10 years old. While in care he displayed “… an extensive pattern of premeditated and predatory sexual behaviour to other boys at this facility”.
[4] His criminal offending began in 2006 when he was convicted on two counts of sexual connection with a young person aged between 12 and 16 years. Intensive supervision was ordered. In 2009 he breached the conditions of intensive supervision. In December 2011 he was convicted on a charge of common assault (which was reported to have been sexually motivated) and fined. In mid-2013, when he was 22 years old, he made contact with a 13 year old boy, using false details, and began sexually offending against him, including engaging in oral sex and anal intercourse. This led to two further convictions for sexual connection with a young person aged between 12 and 16 years. Shortly afterwards, he was also convicted on 11 charges of possessing objectionable publications.
[5] Mr Douglas was sentenced to three years’ imprisonment for the offending against the 13 year old boy and it was on release from serving that sentence that Mr Douglas was made subject to an interim detention order, and then a PPO.
[6] Under the terms of the PPO Mr Douglas resides at a purpose-built facility, Matawhāiti Residence, sited adjacent to Christchurch Men’s Prison and within a secure area. He is not able to leave the residence except under escort and supervision.
2 Public Safety (Public Protections Orders) Act 2014, s 17(1).
[7] Mr Douglas was the first person to have a PPO imposed on him under the Act. The application was heard by Davidson J and occupied two days of hearing. At issue was whether the threshold for making a PPO was made out or whether an extended supervision order (ESO) with intensive monitoring, would provide sufficient public protection while imposing less restraint on Mr Douglas.
[8] In a lengthy and considered decision, Davidson J reached the conclusion that although there was a “well made case for the less restrictive ESO regime … the need for protection of potential victims must come first”, and so, he imposed a PPO.3 He noted, however, that:4
It is not by any means certain that it 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.
[9] In referring to the legislative path for reconsideration, Davidson J was referring to ss 15-17 provisions which required “a constant process of review as to whether [the PPO] remains justified”.5 It is the s 17 route to the review process which is sought to be invoked in this hearing.
Reviews of a public protection order
[10] Section 15 of the Act requires a review panel, at intervals of no more than a year to consider whether there is continuing justification for a PPO to remain in force.
The review panel must, as a minimum, comprise:6
(a)a former District Court or High Court Judge;
(b)a health assessor; and
(c)a member who has experience in the operation of the New Zealand Parole Board.
3 Chief Executive of the Department for Corrections v Douglas, above n 1, at [153].
4 At [153].
5 At [152].
6 Public Safety (Public Protection Orders) Act, s 123.
[11] If the review panel considers “there may no longer be a very high risk of imminent serious sexual or violent offending by the person subject to the public protection order” then it may direct the chief executive to apply to the court for a review of the order under s 16.7
[12]Section 16 provides that:
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.
[13] However, the ability to trigger a review of the continuing justification for the PPO is not just reserved to the review panel. The person who is subject to a PPO may also, with the leave of the court, apply to the court for a review of the PPO pursuant to s 17.
What considerations should be taken into account in deciding whether leave should be granted?
[14] While s 17 of the Act provides a mechanism for a subject person to apply to the High Court for review of the order, it does not set out what test the court ought to use in determining whether leave under s 17 should be granted. Furthermore, this section does not appear to have received judicial consideration to date.
[15] Ms Boshier, for the chief executive, referred to various tests articulated either in statute or by the courts for granting of leave in other circumstances. Having regard to those tests,8 she submitted the circumstances in which leave may be granted under s 17 could include where:
7 Section 15(2).
8 For example, under Parole Act 2002, s 67 and Senior Courts Act 2016, s 74 as articulated in R v Leonard [2007] NZCA 452 for applications for leave in a criminal context.
(a)a procedural fault has led to a miscarriage/unfairness which is material to the decision made;
(b)there is a material change in circumstances;
(c)there has been an error of law;
(d)the decision-maker has taken into account irrelevant material in coming to a decision, or that they have failed to take into account relevant material that may have impacted on the outcome; or
(e)the decision is plainly wrong.
[16] Mr Bailey, however, resisted the suggestion that the grant of leave should be confined in the way suggested. In his submission, had Parliament wished to fetter the exercise of the court’s discretion, it could have identified the grounds on which leave would be granted in the relevant statutory provision. Instead, he argued that this Court had the widest possible scope to grant leave and the leave threshold should not be set too high.
[17] In his submission, the primary focus should be on whether there is an arguable case that Mr Douglas may not reach the statutory criteria justifying the continuation of the PPO. That is not confined to error in the review panel’s decision, but would arise whenever there is evidence that the subject person is no longer at a very high risk of imminent serious sexual or violent offending. If there is such evidence, then leave should be granted.
Discussion
[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”.9 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.
What are the statutory criteria for a public protection order?
[20] As Davidson J pointed out in his decision to impose a PPO, there are strict criteria for the imposition of a PPO, acknowledging that a PPO is a “severe constraint on liberty”.10 Under s 13(1)(b) of the Act, the court must be satisfied that:
(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
(ii)in any other case, the respondent is left unsupervised.
[21] The court must be satisfied of the criteria set out in s 13(2) before it can make a finding that there is such a risk. These criteria are that the individual:
(2) … 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 re-activity, and inability to cope with, or manage, stress and difficulties:
9 Public Safety (Public Protection Orders) Act, s 15(2) (emphasis added).
10 Chief Executive of the Department for Corrections v Douglas, above n 1, at [11].
(c)absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims …:
(d)poor interpersonal relationships or socialisation or both.
[22]The term “imminent” is defined in s 3 of the Act:
[I]n relation to the commission of serious sexual or violent offences by a person, means that the person is expected to commit such an offence as soon as he or she has a suitable opportunity to do so.
[23] This concept was explained by the Supreme Court in Chisnall v Chief Executive of the Department of Corrections as follows:11
[39] The text of s 13 and the definition of “imminent” links the risk which is to be addressed by the orders to provision of opportunity through removal of restraint. The Judge must be satisfied not only that the risk is a high one but that it is likely to occur if the opportunity arises. Under the definition the person must be expected to commit a serious sexual violent offence as soon as he or she has suitable opportunity to do so. The criteria in s 13(2) indicate that “imminent” in this context is not a purely temporal assessment but one linked to opportunity. The order is aimed at preventing the opportunity arising where the Judge is satisfied that an offence of the type is likely to be committed by the respondent when he or she has suitable opportunity.
Consideration of the statutory criteria in the original decision
[24] At the original hearing to determine whether a PPO should be made, Davidson J noted that “while the expert witnesses agree that s 13(2)(a), (b) and (d) are satisfied by evidence to a high level and each characteristic at a high level, they disagree as to s 13(2)(c)”.12 The debate over whether s 13(2)(c) was met was identified by Dr Barry-Walsh who said that if “absence” in s 13(2)(c) meant “completely without”, then the test was not met as Mr Douglas did have some understanding and concern about the impact of his offending on his victims.13
[25]In a full discussion Davidson J reached the following view:
[82]The expression in s 13(2)(c) “absence of understanding or concern
…” may suggest there must be no understanding or concern. I do not think that is right for several reasons. First, it would be almost impossible to establish a “complete absence”. Someone may express intellectually an
11 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83 at [39].
12 Chief Executive of the Department for Corrections v Douglas, above n 1, at [35].
13 At [58].
understanding, or concern, or as the evidence indicates, it might be parroted or rote. The expression “inability to cope with …” in s 13(2)(b) must also have an element of relativity about it because otherwise the mere demonstration of some ability, even extremely limited in scope, would defeat the plain intent of the legislation. …
[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.
[26] Having reviewed the evidence, he concluded that the criterion described in s 13(2)(c) was established by evidence, saying “there is such a high level of deficit exhibited by Mr Douglas that any understanding or concern is inoperative as a check on his further offending.”14
[27] The other issue which was considered thoroughly in the judgment was the concept of “imminent” risk of offending. Davidson J noted that the definition of imminent meant that the person was “expected to commit such an offence as soon as he or she has a suitable opportunity to do so.”15 He concluded:16
On the evidence, suitable opportunities are those where supervision of Mr Douglas has any gaps, which Mr Douglas has shown he can and will exploit, or try to exploit. The evidence is stark. When the opportunity presents itself Mr Douglas is determined and manipulative.
He therefore concluded that Mr Douglas did pose a very high risk of imminent serious sexual offending as defined in s 13(1)(b).17
Why does Mr Douglas say the statutory criteria may no longer be met?
[28] The application is made relying on the report prepared for the Department of Corrections by a clinical psychologist, Paul Carlyon, along with a report prepared by another clinical psychologist, Craig Prince, at the request of Mr Douglas. Both reports were provided to the review panel in October 2019, although only Mr Carlyon was asked to appear in person to answer questions on the reports.
14 At [96].
15 At [11] and [101].
16 At [102].
17 At [119].
[29] While Mr Bailey is critical of the panel for hearing from Mr Carlyon in person, and allowing him to respond to Mr Prince’s conclusions without hearing from Mr Prince in person as well, he relied primarily on observations in Mr Carlyon’s report to support the application for leave. These related to whether Mr Douglas had made improvements in his understanding so that he no longer met the threshold in s 13(2)(c), and whether he was at high risk of “imminent” offending.
[30] In respect of Mr Douglas’s understanding or concern for the impact of offending on actual or potential victims, Mr Carlyon wrote:
Mr Douglas’ repetitive sexual offending targeted towards vulnerable younger people, coupled with an enduring deviant arousal pattern is strongly supportive of a lack of meaningful understanding and concern for the victims (actual or potential) of his offending. His engagement in treatment has been self-focussed and Mr Douglas has tended to indicate that he is motivated to avoid reoffending because of the sanctions he would experience and the withdrawal of family support that is currently available rather than due to harm it would cause. At the same time, this assessor’s interview of Mr Douglas elicited brief but intense distress when considering his offending had on others. The assessor cannot be certain whether his distress reflected concern for the victims in that moment or if his distress was the result of genuine clarity about his own circumstance and prospects arising from harming others.
In this assessor’s opinion, Mr Douglas has a degree of understanding about the effects of sexual offending on others. However, that does not reliably generalise the behavioural change (e.g., desistance) or affective concern sufficient to necessarily preclude further sexual offending.
Mr Bailey says that based on Mr Carlyon’s report and the acknowledgment that Mr Douglas has a degree of understanding, there must be real doubt that Mr Douglas meets the criterion in s 13(2)(c).
[31]Similarly, Mr Prince notes that Mr Douglas:18
… at least has an intellectual understanding of the impact of his offending on victims. (He may be developing an emotional understanding too, but this needs further assessment in the context of his ASD). One could therefore argue that he has some form of understanding.
Whether he has an “absence of concern” is more debatable but is certainly an area for ongoing treatment given the caveats reported above.
18 Craig Prince, “Health Assessor Report on Glen Anthony Douglas”, 25 September 2019 at [47].
[32] Again, Mr Bailey says this evidence supports there being sufficient understanding of the impact of his offending to reconsider whether the criterion in s 13(2)(c) is met.
[33] The second issue raised by Mr Bailey as supporting leave being granted was the comments on whether there was an “imminent” risk of serious offending. Mr Bailey points to Mr Carlyon’s description of there being a “pathway” to offending. Specifically, Mr Carlyon said:19
… if Mr Douglas had unrestricted access to children and young people (in person or through online or other such networks), he would seek to connect with them and develop superficial familiarity. Then, if opportunity was able to be created, Mr Douglas would engage the child or young person in sexualised interactions, and then, contingent on him ascertaining a satisfactory level of risk of detection, sexually assaulting them. Thus, there is a clear pathway towards serious sexual re-offending but at each step there are necessary preconditions before offending would occur. If those various preconditions were met in sequence, as they have on multiple occasions where Mr Douglas has offended, his risk would be imminent.
[34]Mr Prince comments on this conclusion saying:
There is merit in this viewpoint, as Mr Douglas appears to have generally gone through a process before offending rather than “grabbing” the first victim that he came across. However, I am also mindful that he came close to offending whilst visiting a public swimming pool before.
[35] Mr Bailey submits that Mr Douglas’ offending can not, therefore, be described as “imminent”. It would only occur if a number of pre-conditions were satisfied, and this does not satisfy the statutory criteria under s 13(1)(b) for maintaining a PPO.
Why does the chief executive say the statutory criteria are met and there are no grounds for review?
[36] Ms Boshier, for the chief executive, emphasised the requirement to seek leave to apply to the court for a review of PPO clearly indicates that there be some filter for review, particularly where the review panel itself is a specialist body with expertise in legal, psychological and public risk assessment matters, and where the Act requires
19 Paul Carlyon “Psychological Report to the Public Protection Order Review Panel”, 10 September 2019 at [44].
the order to be regularly reviewed, in any event, by the court at intervals of not more than five years.20
[37] In her submission, there must be some evidence of a change in circumstances to warrant granting leave. Section 17 is a backstop to correct error by the review panel. The court is applying the same test as the review panel so Mr Douglas would need to identify that something had gone wrong with the review panel’s decision. The opportunity to seek review in the court is not merely to be afforded to try to persuade this Court to come to a different conclusion on evidence which has already been properly considered.
[38] In respect of the evidence as to whether the criterion in s 13(2)(c) is met, Ms Boshier submitted that the evidence as to Mr Douglas’ level of understanding is the same as it was before Davidson J. While it was acknowledged that Mr Douglas had some intellectual comprehension of the impact on the victim, Davidson J found that that understanding or concern was “so distorted, superficial and self-oriented … that the checks and balances inherent in the combined and individual characteristics in s 13(2) are not operative to negate the risk which derived from those characteristics”, that the criterion in s 13(2)(c) was met.
[39] Ms Boshier did not consider the current reports by Mr Carlyon and Mr Prince demonstrated a material change to the level of understanding displayed by Mr Douglas such as might have an impact on the justification for the continuation of the PPO.
[40] In respect of Mr Bailey’s submissions on whether there was an “imminent” offending risk, again, Ms Boshier submits that the evidence has not changed. The fact that Mr Douglas’ offending required a “pathway” to be followed was fully addressed when the PPO was made. As the Supreme Court made clear in Chisnall v Chief Executive of the Department of Corrections, imminent risk is “not a purely temporal assessment but one linked to opportunity”.21 The fact that some steps may need to be taken to achieve that opportunity did not preclude the criteria from being met.
20 Public Safety (Public Protection Orders) Act, s 16(1).
21 Chisnall v Chief Executive of the Department of Corrections, above n 11, at [39].
[41] This issue was fully considered in Davidson J’s decision. In it he referred to Ms Walker’s report which said that “any sexual offending behaviour would be preceded by a period of grooming, planning and manipulation of the victims and/or the adults close to him”.22 He also referred to the evidence of Mr Todd Downing who acknowledged that Mr Douglas had:23
… shown himself to engage in sexual activity when only the briefest opportunity presents itself. Mr Douglas has also shown himself capable of manipulating others in order to create opportunities for … compliance and his instruction in guidance.
[42] Dr Justin Barry-Walsh acknowledged “the speed of any return to such behaviour is contingent on a number of factors and cannot be precisely predicted.”24 However, he noted that Mr Douglas’ “previous pathway to offending, persisting sexual deviance and high libido” were relevant to the risk of imminent offending.25
[43] While acknowledging that steps needed to be taken by Mr Douglas to create the opportunity to offend, Davidson J concluded that Mr Douglas “does pose a very high risk of imminent serious sexual offending as defined in s 13(1)(b).”26
[44] Thus, in Ms Boshier’s submission, the fact that there are pre-conditions to the offending occurring, as acknowledged by Mr Prince and Mr Carlyon, is not new information. It is information that was acknowledged and addressed when the order was made and where the Judge still reached the view he was at high risk of imminent offending. There is nothing new about this evidence which would warrant granting the application for leave.
Should leave be granted for this Court to review the order?
[45] I approach this issue by asking whether there is now evidence available that could support a finding that Mr Douglas no longer satisfies the test of being at high risk of imminent sexual offending. I start with the criterion in s 13(2)(c).
22 Chief Executive of the Department for Corrections v Douglas, above n 1, at [106].
23 At [109].
24 At [110].
25 At [110].
26 At [119].
[46] The evidence relied on to support the submission is set out in [30]-[31] above, and revisits the issue of whether there is an absence of understanding of the impact on his victims.
[47] The review panel addressed this issue in its October 2019 decision. The panel noted that even when the order was made, it was accepted that Mr Douglas did have some understanding at an intellectual level, but his ASD limited the extent to which he could understand other people’s feelings. To illustrate his current level of understanding they referred to an example of his response to the Christchurch Mosque shootings where he only expressed disappointment that it would mean a super rugby match was cancelled. The panel described this as a “clear example of his enduring lack of empathy and self-centredness”.27 The panel concluded that “nothing that has happened in the years since [Davidson J’s decision] satisfies us that the situation has changed”.28
[48] However, I accept, as Mr Bailey says, the conclusion of the panel is largely irrelevant to the question of whether this Court should grant leave. This is not an appeal of the panel’s decision and applications for leave will only be initiated when the applicant disagrees with the view of the panel.
[49] However, looking at the evidence relied on, I do not consider it reaches the threshold for warranting review. Mr Carlyon, while acknowledging a degree of understanding, says that his “repetitive sexual offending targeted towards vulnerable younger people, coupled with an enduring deviant arousal pattern is strongly supportive of a lack of meaningful understanding and concern for the victims (actual or potential) of his offending.”29 Nothing in his report suggests that there has been a shift in understanding such as would inhibit future offending. The evidence would need to reach that threshold to warrant granting leave to review.
[50] In terms of whether there is an “imminent” risk of sexual offending, there is no new evidence adduced on this. The evidence Mr Bailey relies on is simply an analysis
27 Decision of the Public Protection Order Review Panel in relation to Glen Anthony Douglas, 3 October 2019 at [40].
28 At [40].
29 Paul Carlyon, above n 19, at [47].
of Mr Douglas’ past pattern of offending. It recognises that there are pre-conditions to Mr Douglas’ offending in that he would need to take steps to create the opportunities to offend. However, those issues were fully canvassed in the original hearing before Davidson J, where he acknowledged the imminent risk of offending depended on opportunities being created. He concluded that without the strict supervision of a PPO, Mr Douglas would take steps to create such opportunities and engage in serious sexual offending. The arguments raised by Mr Bailey simply seek to revisit that conclusion, without adducing new evidence to suggest it is now no longer valid.
[51] For these reasons, I am not satisfied that there is evidence which suggests there “may no longer be a very high risk of imminent serious sexual … offending” and the application for leave is declined.
Solicitors:
Andrew Bailey, Barrister, Christchurch Raymond Donnelly & Co., Christchurch
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