McGreevy v Chief Executive of the Department of Corrections
[2023] NZHC 2349
•28 August 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2016-409-125
[2023] NZHC 2349
UNDER Section 107M Parole Act 2002 IN THE MATTER OF
an application to cancel an extended supervision order
BETWEEN
PATRICK JOHN MCGREEVY
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 23 August 2023 Counsel:
A J Bailey for Applicant A L Mills for Respondent
Judgment:
28 August 2023
JUDGMENT OF CHURCHMAN J
Introduction
[1] Mr Patrick McGreevy has applied pursuant to s 107M of the Parole Act 2002 to cancel his extended supervision order (ESO).
[2] He makes his application on the basis that he is not at high risk of committing a relevant sexual offence within the remaining term of his order.
[3] The Court has the benefit of two clinical psychological reports, the first, adduced by the applicant, prepared by Mr Craig Prince and dated 16 June 2023, and the second, adduced by the respondent, prepared by Ms Ruth Pracy and dated 5 April
MCGREEVY v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 2349
[28 August 2023]
2023. Both Mr Prince and Ms Pracy gave oral evidence and were extensively cross- examined.
Law in relation to ESOs for sexual offending
[4] The purpose of an ESO is to protect members of the community from those who pose a real and ongoing risk of committing serious sexual or violent offences.1 A court may make an ESO if the court is satisfied the offender has, or has had, a pervasive pattern of serious sexual offending, and there is a high risk that the offender will in future commit a relevant sexual offence.2
[5] Section 107M(4) of the Parole Act provides that a court may order the cancellation of an ESO only if the applicant satisfies the court, on the basis of the matters set out in s 107IAA, that the offender does not pose a high risk of committing a relevant sexual offence within the remaining term of the order. The decision by a court to cancel an ESO is discretionary.
[6] The criteria that must be satisfied for an offender to be considered at high risk of committing a relevant sexual offence are listed in s 107IAA:
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:
1 Parole Act 2002, s 107I(1). I refer from now on in this judgment to ESOs only insofar as they relate to sexual offending.
2 Section 107I(2).
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
[7] In MacIntosh v Chief Executive of Department of Corrections, the Court of Appeal commented that determining whether there is a high risk that a given offender will commit a relevant sexual offence within a stated period “is an inherently difficult exercise”.3 It described the first two considerations under s 107IAA(1) as “animating characteristics” and the latter two as “protective characteristics”.4
[8] The use of the word “displays” in respect of the first factor does not mean such traits and behavioural characteristics must be externally manifested, but may be “latent and emerge only in certain contexts.”5 A person has a “predilection” for serious sexual offending if they have a preference or particular liking for serious sexual offending.6 A “proclivity” embraces an inclination toward something considered morally wrong and encompasses the concept of a pattern.7
[9] In Kiddell v Chief Executive of the Department of Corrections the Court held that a pervasive pattern is one that is sufficiently characteristic of the offender to serve as a predictor of future conduct.8 In Chief Executive of the Department of Corrections v Ihimaera, Muir J considered that “[t]aken together the two words [‘pervasive’ and ‘pattern’] suggest that the previous offending must have characteristics so prevalent and common as to provide a reliable predictor of relevant future conduct.”9
[10] When considering whether an offender presents a high risk of committing relevant sexual offences in future, the court will take into account anything that may
3 MacIntosh v Chief Executive of Department of Corrections [2021] NZCA 218 at [22].
4 At [22].
5 Chief Executive Department of Corrections v Alinizi [2016] NZCA 458 at [26]–[28]; and
Chief Executive Department of Corrections v Douglas [2016] NZHC 3184 at [86].
6 Chief Executive of the Department of Corrections v Dixon [2017] NZHC 1126 at [16]; and
Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [44].
7 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [41], upheld on appeal by the Supreme Court in Holland v Chief Executive of the Department of Corrections [2017] NZSC 161; and Chief Executive of the Department of Corrections v Wrigley, above n 6, at [44].
8 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171.
9 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [46].
exacerbate or mitigate the risk, such as community support and the offender’s response to any treatment that has been undertaken.10
[11] In making (or cancelling) an ESO, the court must be “satisfied” that the criteria in s 107I(2) (or s 107M(4)) and s 107IAA have (or have not) been established. There is no onus or standard of proof. The Court must make up its mind on the evidence.11 If it is satisfied the statutory criteria are met, the court “may” make an ESO. There is discretion to refuse to make such an order.12 However, it would be exceptional not to make an order when the criteria had been established, given the high threshold for an order and the statutory concern for public safety.13
Current approach to ESOs
[12] In Chisnall v Attorney-General,14 the Court of Appeal made a declaration of inconsistency between the Public Protection Order (PPO) and ESO regimes and s 26(2) of the New Zealand Bill of Rights Act 1990 (the NZBORA), which provides that no one who has been finally acquitted, convicted or pardoned of an offence shall be tried or punished for it again, and that the inconsistency had not been justified under s 5 of the NZBORA.
[13] It has been clear since the Court of Appeal’s 2006 decision in Belcher v Chief Executive of the Department of Corrections that an ESO is a second penalty which engages s 26(2) of the NZBORA, and that the discretion to make an ESO must only be exercised where the ESO is a justified limitation on that right.15
[14] Since the decision in Chisnall, cases have emphasised the requirement for “strong justification” needed for the imposition or continuation of an ESO.16 The applicant has invited me to recalibrate the approach, in light of Chisnall. However,
10 Kiddell, above n 8, at [24].
11 At [25].
12 At [26]; and Chief Executive of the Department of Corrections v Popata [2017] NZHC 2343 at [9].
13 Popata, above n 12, at [57].
14 Chisnall v Attorney-General [2021] NZCA 616.
15 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) at [47]– [49].
16 R v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53]; and Wilson v Chief Executive of the Department of Corrections [2022] NZCA 289 at [20].
since Chisnall the Court of Appeal has declined to recalibrate the statutory thresholds before an ESO is made, pending the Supreme Court’s decision on the appeal in Chisnall. I similarly consider any such recalibration is both unnecessary and, in light of this, premature. The rights-based approach is currently clear: “careful scrutiny” must be applied to ensure a proposed ESO, even where the statutory criteria for an order are met, is “clearly” or “strongly” justified.17
Issue in this application
[15] The ultimate question in this application is whether the applicant remains at high risk of committing a relevant sexual offence within the remaining term of his ESO.
[16] The applicant submits he is not at high risk of committing a relevant sexual offence within the remaining term of his order because he does not meet the first two requirements for an ESO, described as the “animating characteristics” by the Court of Appeal, namely that he does not display an intense drive, desire or urge to commit a relevant sexual offence (s 107IAA(1)(a)) and he does not have a predilection or proclivity for serious sexual offending (s 107IAA(1)(b)).
[17] The respondent opposes the application. The respondent submits the evidence is mixed in relation to the first factor, and the applicant has demonstrated a time- specific proclivity for relevant sexual offending and there remain some intermittent indicators of possible presence of risk in relation to the second factor.
Discussion
[18] In assessing whether these criteria are met, I turn to consider the information contained in the expert reports I have received from the two clinical psychologists who have assessed the applicant and the evidence they gave in Court.
17 See in addition Department of Corrections v Bell [2022] NZHC 2453; and Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507 at [3] and [31].
Display of intense drive, desire or urge to commit a relevant sexual offence
[19] Ms Pracy observed that the applicant’s 2004 sexually motivated offending was “demonstrative of an intense drive to commit a relevant sexual offence.” Since this time Ms Pracy noted there have been intermittent concerns which related to sexual preoccupation or deviance, albeit with some evidence of risk management.
[20] Ms Pracy concluded under this head that the evidence is mixed regarding the applicant’s drive or urge to engage in relevant sexual offences. She stated:
… [The applicant] demonstrated a brief and intense drive to engage in specified sexual offending in 2004. However, this urge has not been sufficient to result in further sexual offending since the index offences, despite an extended period within the community.
[21] The applicant has not sexually reoffended for almost two decades. Neither has the applicant been convicted for breaching his conditions for a decade. While some of this time has been spent in prison, the majority of it has seen the applicant living in the community. Mr Prince considered the applicant “has had ample opportunity to reoffend if he wanted to.”
[22] The applicant committed the offending when he was 34. He is now 52. Both experts noted the applicant is likely to have matured somewhat with age, and risk of sexual recidivism generally decreases with advancing age. Mr Prince considered the applicant “does not appear to have come close to reoffending.”
[23] Mr Prince is of the opinion this criterion is no longer met. He said in his report, “[i]n my opinion, if his drive, desire, or urges were that intense, he would have reoffended by now.”18 I note at this point that this assessment is a development on Mr Prince’s previous report, completed in February 2021, when he found the applicant at that time still posed a high risk of engaging in a relevant sexual offence. Mr Prince at that time had noted he was “somewhat optimistic” about the applicant making progress “over the next year or two”. It appears such has been the case, given Mr Prince’s change of assessment.
18 Emphasis in original.
[24] On the basis of the evidence I have received, I am not satisfied that the applicant any longer displays an intense drive, desire, or urge to commit a relevant sexual offence.19
[25] Accordingly, I am satisfied the applicant no longer presents a high risk of committing a relevant sexual offence in relation to assessment under this factor.
Predilection or proclivity for serious sexual offending
[26] Both psychologists are of the opinion that the applicant does not have a predilection or proclivity for serious sexual offending. Ms Pracy noted that the applicant “does not appear to have a predilection for serious sexual offending” and while the applicant “is considered to have demonstrated a time-specific proclivity for serious sexual offending”, the intermittent indicators of possible presence of risk have not resulted in sexually motivated offending. Mr Prince noted the applicant was “not appearing to display a predilection” for serious sexual offending and the applicant’s proclivity for serious sexual offending “appears to be historic, and no longer a factor.”
[27] The respondent does not challenge the psychologists’ findings in this respect. It appears clear this criterion is also not satisfied.
[28] Accordingly, I am also satisfied the applicant no longer presents a high risk of committing a relevant sexual offence in terms of this factor.
Conclusion as to risk of applicant committing relevant sexual offence
[29] I am satisfied that the applicant currently neither displays an intense drive, desire, or urge to commit a relevant sexual offence, nor that he has a predilection or proclivity for serious sexual offending, in terms of the first two criteria under s 107IAA.
19 See Wharton v Chief Executive of the Department of Corrections [2019] NZCA 320 for a similar situation.
[30] Accordingly, I do not consider the applicant remains at high risk of committing a relevant sexual offence within the remaining term of his ESO. The requirement for the court to cancel the applicant’s ESO under s 107M(4) is met.
Cancellation of ESO
[31]The decision to cancel an ESO is nevertheless discretionary.
[32] I note my concerns in this regard if the ESO is to be cancelled. These are outlined in Ms Pracy’s report, in particular that the applicant presents a well above average risk of committing a further relevant sexual offence in the absence of committed and informed community supports who hold him to account, such as an ESO or a strong group of community and personal supports.
[33] The applicant has no confirmed address and would be required to leave his accommodation within one month if the ESO ceases. The applicant has no personal supports and relies wholly on professional support, some of which is only available because of the ESO.
[34]As Ms Pracy commented:
If [the applicant’s] ESO was to be cancelled in the near term, his release plan would very likely be insufficient to assist him to manage his risk of re- offending. Rather, in my view, the removal of supports has the potential to increase the presence of dynamic risk factors.
[35] Under cross-examination, Mr Prince accepted that without external supports in place Mr McGreevy still posed a high risk of engaging in a relevant sexual offence.
[36] He explained that the sorts of “external supports” he was referring to primarily involved having stable accommodation, professional supports or family support present to help him in the community. He also agreed that Mr McGreevy currently had no support network other than professional support.
[37] He noted Mr McGreevy had earlier this year received positive support from mental health services although this was set to change with a reversion to care from primary health services (his GP). Mr Prince thought that a recent change to
Mr McGreevy receiving his medication three monthly by injection rather than having to take it every day orally, was also a positive development.
[38] He acknowledged that even taking the medication three monthly still required a conscious decision by Mr McGreevy to go to his GP and get the injections.
[39] Mr Prince accepted that without having a family network or friends who could observe when Mr McGreevy was becoming mentally unwell, there was a risk he could relapse into the sort of risky behaviour Mr McGreevy had engaged in after he became unwell at the end of 2022.
[40] Mr Prince acknowledged that on the risk assessment instruments, Mr McGreevy was regarded as high risk and thought that was because he had not attended treatment successfully and not applied the things that he had learnt. Notwithstanding that, he thought Mr McGreevy, presently, could be described as less than high risk and was better described as being more of a mental health patient with a chronic mental illness.
[41] Mr Prince expressed the view that further treatment was unlikely to achieve a positive outcome and the factor that most reduced the risk of reoffending was Mr McGreevy not wanting to go back to prison. He conceded that the key protective factor against risk was the presence of external supports.
[42] As to the impact of the ESO being discharged, Mr Prince agreed that if the ESO ended today, Mr McGreevy would struggle and that time for the Department of Corrections to make suitable arrangements for new stable accommodation was required. He acknowledged that there was currently no “release” plan.
Analysis
[43] The requirements for an ESO are no longer met and I consider it is not appropriate in these circumstances that the ESO continue. However, the psychologists were both in agreement that without suitable supports, principally stable accommodation and a support network, Mr McGreevy would be at high risk of engaging in relevant sexual offending. It would therefore be irresponsible of me to
immediately discharge the ESO without allowing an opportunity for the Department of Corrections to arrange suitable accommodation and to attempt to put a support network in place.
Outcome
[44] I make an order discharging the ESO, such order to be effective on 13 October 2023 in order to allow for suitable alternative stable accommodation to be obtained and a transitional plan to be developed.
Churchman J
Solicitors:
Crown Solicitor, Christchurch for Respondent
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