Leahlaiaolotu v Chief Executive of the Department of Corrections HC Christchurch CRI-2005-409-132

[2011] NZHC 1162

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2005-409-132

FETA TULUI LEALAIAOLOTU

Applicant

v

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:         Matter dealt with on the Papers

Appearances: Applicant in Person

PA Currie for Respondent

Judgment:      29 September 2011 at 9:30 AM

JUDGMENT OF TOOGOOD J

F Lealaiaolotu,

PA Currie, Raymond Donnelly & Co. Christchurch:  [email protected]

LEALAIAOLOTU V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC CHCH CRI-2005-409-132 29 September 2011

[1]      On 12 August 2005, Cooper J made an extended supervision order in relation to Mr Lealaiaolotu for a period of ten years.   The ESO was imposed following Mr Lealaiaolotu’s conviction and sentence, on 22 November 2001, to a term of three years and six months’ imprisonment for a number of offences which included two charges  of  indecently assaulting  a  female  under  12,  one  charge  of  inducing  an indecent act on a girl under 12, and one charge of unlawful sexual connection with a female under 12.

[2]      Mr Lealaiaolotu  was  convicted  by  a  jury  following  not  guilty pleas.    In sentencing him, William Young J said:

[1]     ... you appear for sentence on four counts involving indecencies with a 10 year-old girl.

[2]     The offences you committed involved indecently assaulting her by kissing her and licking her breasts, inducing her to do an indecent act, namely touching your penis, and sexual violation involving digital penetration of her vagina.   This offending occurred over a period of a week or perhaps two weeks or so in January this year. There was only one incident in which you made her touch your penis. The other offending occurred on a number of occasions.

[3]     You were staying with the complainant’s mother, to whom you are related, and because space was at a premium you were sleeping in the same room as the complainant and her two younger brothers. You took advantage of the sleeping arrangements to offend in the way in which I have mentioned.

...

[5]     You  are  now  42.    You  have  previous  convictions  for  common assault in 1984 and offensive behaviour in 1985.   Although you have lived in New Zealand for some 20 years you have limited English language skills.  You have been very much involved in the Samoan community in New Zealand.

[6]     The offending is serious enough.   It was against a young girl.   It involved you taking advantage of the hospitality afforded to you by her mother.  The offending has caused immense difficulties for the complainant’s mother and, I suspect, the complainant in terms of relationships within the wider family and the Church group to which you all belong.  This is largely because the complainant’s mother’s parents have lined up with you against the complainant and her mother...

[8]     There are no mitigating factors other than that I am prepared to treat you as being, in substance, a first offender.  You show no remorse. Indeed, your lying denials of guilt have served to make worse the situation for the complainant and her mother within the wider family and community....

[3]      In 2005, the Department of Corrections applied for an extended supervision order in respect of Mr Lealaiaolotu on the basis that he was an “eligible offender” within the meaning of ss 107C and 107Y Parole Act 2002 (“the Act”), and that he was likely to commit an offence referred to in s 107B(2) of the Act after he ceased to be an eligible offender.  The application was not opposed when it was called before Cooper J on 12 August 2005, and an order for extended supervision for a period of

10 years from that date was made.

[4]      On 10 May 2011, Mr Lealaiaolotu wrote to the Chief Justice saying that he wanted to “re-state my innocence” and to “again appeal my conviction”.   He also said that he was now into his fifth year of his “probationary sentence” and that he would like to “plead for a review” of his present situation.   Numerous references supporting his release from supervision were attached to the letter.

[5]      The letter and its attachments were referred to the Registrar of the High Court at   Christchurch.      On   30 June 2011,   Ms Ayling,   Deputy   Registrar,   wrote   to Mr Lealaiaolotu indicating that if he wished to appeal his conviction he would have to file a notice of appeal with the Court of Appeal.

[6]      On 22 July 2011, however, after the matter had been referred to him for directions, Chisholm J determined that Mr Lealaiaolotu’s letter should be treated as an application pursuant to s 107M of the Act (as inserted by the Parole (Extended Supervision) Amendment Act 2004) for cancellation of the extended supervision order.  The Judge indicated that treating the matter in that way would not prevent Mr Lealaiaolotu from filing an appeal with the Court of Appeal if he so wished.

[7]      Chisholm J directed that the application be set down for hearing at 2:15 pm on 29 September 2011, and requested the Department of Corrections to provide a report to the Court about its attitude towards the application and any other matters it considers relevant. A copy of that report was to be supplied to Mr Lealaiaolotu.

[8]      The report was provided to the Court by Ms Currie of the Crown Solicitor’s office on 27 September 2011, with an indication that the Department of Corrections would not be opposing the application.

[9]      After reading the report, in light of the indication that the application would not be opposed, I determined that the matter could be dealt with on the papers and appearances were excused.

[10]     The   report   from   Ms Waugh,   Registered   Clinical   Psychologist,   dated

19 September 2011, was endorsed by Mr Lealaiaolotu as having been explained to him.  He acknowledged having received a copy on 20 September 2011.  Ms Waugh records that in preparing for the report, she reviewed the probation and psychological files and held interviews with Mr Lealaiaolotu’s probation officer since 2005.   In addition, Mr Lealaiaolotu’s nephew who had attended the two hour interview with the psychologist  on  1 September 2011  and  assisted  with  interpretation,  was  also questioned directly about aspects of his uncle’s behaviour.  Ms Waugh also took into account other relevant psychological reports and assessments, including a pre- sentence   report   and   notes   on   sentence   related   to   offences   committed   by Mr Lealaiaolotu while in prison, which are discussed below.

[11]     The report indicates that Mr Lealaiaolotu continued to deny the offending for which he was imprisoned, identifying another person whom he said had been responsible for the offending and reporting that he continued to experience distress and confusion over why he had been convicted of the offences.

[12]     While in prison for his index sexual offending, Mr Lealaiaolotu received seven misconduct convictions for sexually abusive behaviour against three different inmates between 19 June and 20 August 2002 in the prison kitchen where he was working.  These behaviours were noted to have ranged from threatening to rape an inmate and grasping an inmate’s breast and buttocks, to poking a sharpening steel in between an inmate’s buttocks in the vicinity of his rectum and holding the steel like a penis when the inmate turned around.

[13]     When interviewed in 2005, Mr Lealaiaolotu was noted as having denied the offences and maintaining that the complaints were false and prompted by racism directed against him.   When interviewed by Ms Waugh for the purposes of her September 2011 report, Mr Lealaiaolotu continued to deny his involvement in this offending.

[14]     The psychologist notes that Mr Lealaiaolotu’s offending has occurred within the context of “very oppressive and restrictive beliefs about sex and sexuality.” Ms Waugh hypothesised that Mr Lealaiaolotu’s avoidance and repression of his own sexuality has led to both a relatively naive approach to sex, and a tendency to express his sexuality through inappropriate and illegal means (including his index offending and his misconduct while in prison).

[15]     Given that Mr Lealaiaolotu has consistently denied his offending, he has not been eligible for, or received, offence specific treatment.

[16]     Mr Lealaiaolotu  was  assessed on  the familiar ASRS,  STABLE-2007,  and ACUTE 2007 bases.   Based on the multi-method assessment using those actuarial measures and noting clinical risk factors, the psychologist concluded that there was a medium-low risk of Mr Lealaiaolotu committing a further relevant sexual offence while in the community.  She further observed that this risk was a reduction from the previous health assessment conducted in 2005 which placed Mr Lealaiaolotu at a high risk, reflecting an improvement in Mr Lealaiaolotu’s current presentation and compliance with supervision.

[17]     The report discusses the risk issues relevant to s 107F(2) of the Act, which are:

(a)       the  nature  of  any  likely  future  sexual  offending  by  the  offender, including the age and sex of the likely victims;

(b)       the offender’s ability to control his or her sexual impulses;

(c)       the offender’s predilection and proclivity for sexual offending;

(d)the  offender’s  acceptance  of  responsibility  and  remorse  for  past offending; and

(e)       any other relevant factors.

[18]     Under s 107M(4) of the Act, the sentencing Court may order the cancellation of an extended supervision order “only if the applicant satisfies the Court that the offender is no longer likely to commit any of the relevant offences referred to in s 107B(2)  within  the  term  of  the  order.”    The  offences  listed  cover  all  sexual offending against children and young people under the Crimes Act 1961.

[19]     Ms Waugh’s report concludes with the following recommendation:

Mr Lealaiaolotu was assessed to present with a medium-low risk of relevant further sexual offending within the community during the less than five years remaining of the Extended Supervision Order that was imposed in August 2005.  Should he sexually reoffend, this could include indecent assault with a pre-pubescent female victim, should he have access to children, and in the context of his on-going avoidance of appropriate sexual expression.   Mr Lealaiaolotu was assessed to have a fair ability to control his sexual impulses and there  was an  absence  of evidence suggesting a  predilection and proclivity for sexual offences against children.  His ongoing denial of his offending precludes Mr Lealaiaolotu taking responsibility and expressing remorse for his offending, however this is not considered to significantly elevate his risk at this time

[20]     The  report  indicates  that  Mr Lealaiaolotu  has  been  coping  well  in  the community since his release.  Although he is not employed he is settled in his own accommodation and appears to have significant family support.  It appears he does not use alcohol or other substances and, although having been angry and resentful at his imprisonment, now describes himself as “peaceful” and focused on the future.

[21]     Having regard to the content of the report in the light of the factors which the Court is obliged to consider under s 107F(2), and noting that the Department of Corrections  does  not  oppose  cancellation  of  the  order,  I  am  satisfied  that Mr Lealaiaolotu is no longer likely to commit any of the relevant offences within the remaining term of the order.

[22]     The Extended Supervision Order made on 12 August 2005 is cancelled with immediate effect.

............................................

Toogood J