Miller v Department of Corrections
[2022] NZHC 1342
•8 June 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2017-485-015
[2022] NZHC 1342
IN THE MATTER of an application to cancel an Extended Supervision Order under s 107M of the Parole Act 2002 BETWEEN
RICHARD MILLER
Applicant
AND
DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 16 May 2022 Appearances:
S J Fraser for the Applicant
F E Cleary for the Respondent
Judgment:
8 June 2022
JUDGMENT OF COOKE J
(Cancellation of ESO)
[1] By application dated 3 December 2021 Mr Miller applies under s 107M of the Parole Act 2002 (the Act) to cancel the extended supervision order (ESO) to which he is subject.
[2] By judgment dated 5 May 2021 I considered, and dismissed an earlier application by Mr Miller to cancel the ESO.1 When doing so, however, I encouraged Mr Miller to make a further application once a plan had been developed by him and the Department of Corrections (the Department) to facilitate his reintegration into society in a safe way.2 Such a plan has since been developed, and partly implemented.
1 Miller v Department of Corrections [2021] NZHC 983.
2 At [66].
MILLER v DEPARTMENT OF CORRECTIONS [2022] NZHC 1342 [8 June 2022]
This new application is accordingly made in accordance with the encouragement I earlier gave. For these reasons, while this is a fresh application under s 107M, it effectively involves a continuation of the first application considered by me in May last year. This judgment should not be read in isolation from my earlier judgment. Rather it should be seen as a continuation of that judgment, including in terms of the analysis undertaken of the statutory requirements and the consideration of Mr Miller’s circumstances against those requirements.
Background
[3] The ESO was first made by the Court on an unopposed basis on 17 October 2017.3 Mr Miller had originally been sentenced in the District and High Courts in 2008 in relation to sexual offending that had occurred over a number of years. The earliest offending was in 1990. The offending involved sexual violation by rape, sexual violation by unlawful sexual connection, and indecent assault. The victims were aged between 10 and 16 years of age. The effective sentence imposed by the Court for the offending overall was nine years and nine months’ imprisonment.
[4] Mr Miller served the full period of his sentence without parole being granted. The Court was asked to make an ESO as the end of the term of imprisonment approached. The making of an ESO was not disputed, although the period was. The Department of Corrections sought a 10 year term, but the Court ultimately imposed eight years.4
[5] On 8 October 2020 Mr Miller made his first application to cancel the ESO. This application was heard by me in February 2021. That judgment involves a full review of Mr Miller’s circumstances, and the application of the statutory requirements.5 Two matters were of particular significance. First, the “static” risk assessment tools applied by the experts suggested that Mr Miller was not at a high risk of reoffending. Static risk factors are those that are not changeable. The risk is assessed on an actuarial basis — that is, Mr Miller’s risk of reoffending given factors such as his offending history, his age and other factors of this kind by comparison with
3 Department of Corrections v Miller [2017] NZHC 2527.
4 At [60].
5 Miller v Department of Corrections, above n 1.
other offenders with that history. But the application of the “dynamic” risk assessment tools assessed him at a higher risk. Dynamic risk assessments seek to add in factors personal to the person being assessed — for example by introducing factors such as the attitudes they appear to have. It was these dynamic risk assessment factors that justified the existence of the ESO in Mr Miller’s case.
[6] There is a level of uncertainty concerning the predictive value of dynamic risk assessments compared to static risk assessments.6 In addition, part of the difficulty in undertaking the dynamic risk assessment here was that Mr Miller was a “denier” — he did not admit his offending. That had implications for the outcome of the dynamic risk assessments. For example, his denier status meant that he was not eligible for some treatment programmes, and some information for the assessment normally obtained during treatment (such as his attitudes) needed to be taken from other sources, such as the sentencing notes. The denier status, and its implications, partly explained the higher risk predicted by the dynamic tools. Yet the expert literature is clear that denial is not associated with increased risk.7 It was possible that his status as a denier had accordingly had a disproportionate adverse impact on Mr Miller. I said in that context:8
… Mr Miller has served a full sentence of over nine years. He was not released on parole partly because he has denied his offending. A further eight year ESO has then been imposed notwithstanding that he was identified as low to moderate risk on the static risk assessments. That can be seen as a cumulative 17 year period where he has been subject to highly restrictive controls. Unless it is suggested he can be kept subject to an ESO almost indefinitely he will ultimately need to be released into the community without such controls. It seems to me that that feature has significance when it comes to considering the potential cancellation of the ESO.
The potential for the imposition of further ESO orders for someone such as Mr Miller can be problematic, particularly if they are implemented on a precautionary basis. Given he is a denier, the inputs into the dynamic risk assessment tools will not likely change, and those tools may continually assess him as high risk as a consequence. The State has a responsibility to facilitate Mr Miller’s reintegration into the community. If it does not do so it can be faced with the situation that it found itself in in Vincent v New Zealand Parole Board where the High Court ordered that an 83 year old man with stage five dementia who had spent 52 years in prison under a sentence of preventative detention was required to be released.9
6 At [43]–[47].
7 At [39].
8 At [52]–[53].
9 Vincent v New Zealand Parole Board [2020] NZHC 3316. See particularly [101].
[7] It was significant, however, that Mr Miller was subject to very significant controls under the ESO. He was living in accommodation on prison grounds, subject to very limited ability to interact with the community with any normality, and he was being electronically monitored. Those circumstances increased the risk associated with the removal of the ESO. I said:10
… when considering whether to impose or cancel an ESO it is important to consider the counterfactual. Mr Miller is currently living a highly controlled life in a dwelling connected with the prison with a nightly curfew where his movements are electronically monitored. He is very limited by the terms of the ESO. In assessing whether Mr Miller is a high risk it is necessary to consider the environment in which he will live unrestrained by the ESO. That environment may be of critical significance in determining whether he meets the high risk threshold or not. An offender may not have the limited self- regulatory capacity, the predilection or proclivity, or display the intense drive or desire or urge to reoffend if the environment in which he will be released mean the factors in s 107IAA(1) are not manifest.
[8] Mr Miller had no realistic plan around his reintegration into society at this time. The proposal involved him having the ESO lifted “cold turkey”. He said he would likely live at a motor camp, or accommodation of this kind, if the ESO was cancelled. I concluded that this kind of release from the constraints currently around him was not viable and would lead to the kind of risks that were evident in the dynamic risk assessment. As Mr Riley had said in his evidence, someone like Mr Miller could not be held “on ice” and be released straight back into the community. There needed to be something in the nature of a reintegration plan so that Mr Miller’s risks could be properly managed.
[9] For that reason I formally declined the application to cancel the ESO, but on the basis that both the Department and Mr Miller should work on a proper reintegration plan. In doing so I identified particular features that I considered relevant to that plan, including the location in which Mr Miller should live (near to his brother in Christchurch), the support from his family in Hawkes Bay, the development of social networks and other types of assistance, and potentially employment. I said in that context:11
I also make the somewhat obvious point that if that environment is not provided, including when the ESO lapses, there will likely be a greater risk.
10 Miller v Department of Corrections, above n 1, at [56].
11 At [63].
Mr Miller mentioned that his brother is not well. It would be far better to move promptly now rather than keeping Mr Miller on ice, and then the ESO lapsing in circumstances where the risk to the wider public may be increased. Mr Miller should not be kept under effective confinement forever. For that reason the Department may have a responsibility to assist Mr Miller with developing an appropriate environment to move to.
What has happened since?
[10] The current application is supported by further affidavits from Mr Miller and from Mr Riley who were both questioned on their evidence. I have not had a further affidavit from the Department’s risk assessment expert, Mr Carlyon. Apparently he was not able to assist the Court further. The Department relies on the earlier reports filed by him. I do, however, have an affidavit from Ms Sandra MacFarlane who is Mr Miller’s current probation officer. She has been managing the ESO since December 2021. She has explained the steps that have been taken in recent times, and she also raises matters of concern to the Department concerning the cancellation of the ESO.
[11] A number of positive steps were taken following my earlier judgment in an attempt to establish an environment in which Mr Miller’s reintegration into the community could take place in a manner that mitigated the risks. The Department has supported Mr Miller’s relocation to Christchurch, and collaborated with Kāinga Ora to secure him independent accommodation. This is the first time that Mr Miller has lived independently since his initial imprisonment. The accommodation is sufficiently close to his brother to allow his brother and his wife to support him.
[12] Mr Miller’s own family remain in Hawkes Bay, and they have provided letters to suggest that they are also supporting Mr Miller’s new life based in Christchurch. Mr Miller explained that he hoped to have more contact with his family once the ESO was cancelled. At present he is not able to leave Christchurch, and he is electronically monitored.
[13] In addition Mr Riley has explained he has been in contact with Mr Miller and, in a sense, is available to him in a mentoring role. Mr Riley is now retired and he is undertaking that role without payment, in effect performing what he said was his duty as a good citizen. The community can be very thankful to Mr Riley for agreeing to do
this. I strongly recommend to Mr Miller that he make use of Mr Riley. A full and frank relationship with him will be of obvious benefit to his future life.
[14] Mr Miller also explained a degree of contact he was having with community groups, and friendships he was seeking to develop in the community more broadly. These can only be regarded as preliminary steps, but they are nevertheless important steps to allow Mr Miller to develop as normal a life as is possible. Securing employment has been, and will be more difficult. Mr Miller has needed to explain his conviction history, and he is currently electronically monitored.
The statutory requirements
[15] Subsequent to my earlier judgment in Mr Miller’s case a full Court of the Court of Appeal has released its judgment in Chisnall v Attorney-General.12 The Court concluded that the legislation establishing ESOs and other similar orders was inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), and that the limitation on such rights was not demonstrably justified in a free and democratic society under s 5 of the Bill of Rights. Whether the Court’s judgment means that there should be a reconsideration, or recalibration of the statutory thresholds that must be satisfied before such orders are made, or an adjustment to how the provisions are applied in particular cases, does not arise for consideration in this case.13 But the Court of Appeal’s judgment reinforces the view that I reached in the earlier judgment that the continuation of the ESO in Mr Miller’s case can no longer be justified provided he has a plan for reintegration into the community in an appropriate way.
[16] Therefore, in the present case it is appropriate to consider the plan that has now been partly implemented by the Department with Mr Miller to review whether the ESO is still appropriate under the statutory requirements.
[17] In order to do so it is appropriate to address not only the new circumstances, but also the matters that are raised by the Department relevant to those matters, and in
12 Chisnall v Attorney-General [2021] NZCA 616, (2021) 13 HRNZ 49.
13 See Department of Corrections v Gray [2021] NZHC 3558 at [19]–[25].
particular the concerns they have raised that Mr Miller has not been complying with the conditions of his ESO since they have been relaxed.
The Department’s concerns
[18] The first matter raised by the Department is that on his first night in Christchurch in July 2021 Mr Miller breached the curfew condition of his ESO. I accept Mr Miller’s explanation, however, that he had been told that he was no longer subject to a curfew, and that this was the reason why there was a breach. When he was contacted about that breach he was at his brother’s house for dinner, and simply returned to his own house when he was told this was required. It is not suggested that there was any conduct associated with his risk of sexual offending involved in this. For that reason this suggested breach can be put to one side.
[19] The second matter raised by the Department has more significance. Mr Miller formed a relationship with a person who he had met in the community whilst shopping. There is no suggestion that this relationship was in any way inappropriate. But Mr Miller did not initially report this relationship to his probation officer, or Mr Riley. Neither did he initially disclose his offending history to his new partner. Moreover his new partner had a pre-school aged granddaughter who she cared for routinely. The Department’s concern was that Mr Miller would thereby gain access to a younger child.
[20] There is no evidence to suggest that Mr Miller engaged in any inappropriate behaviour in connection with this relationship. I accept that the fact Mr Miller did not disclose this relationship to his probation officer was a cause for concern. However his reluctance to do so is, to some extent, understandable. He also subsequently disclosed his background to his partner. The Department made contact with that partner to confirm that that had taken place. For a period Mr Miller and his new partner endeavoured to continue their relationship, but her family disapproved of the relationship. Mr Miller explained that they have now broken off their intimate relationship, although they remain on friendly terms.
[21] By itself I do not think this episode evidences any risk of reoffending. Rather it reveals that Mr Miller wants to form a normal relationship, although there is a
difficulty in him doing so given his conviction history. Although there is a concern that Mr Miller was not forthright about disclosing these matters, I am not satisfied that this increases his risk of reoffending by itself.
[22] The Department also raised a concern that Mr Miller was identified through electronic monitoring as being in the street in which his new partner’s granddaughter lived, and that this would be a breach of the terms of his ESO. Mr Miller explained, however, that he had been waiting for his new partner outside in the car, and that he did not enter the premises at which the grandchild was present. I have no reason to doubt that, and the Department do not suggest that Mr Miller made any contact with the granddaughter.
[23] The Department suggested that there was an inconsistency in what Mr Miller had said about the interactions he had had with the family of his new partner. In particular they suggested that, at least at one point, Mr Miller had said that he had gone inside and met people at the address. Having heard Mr Miller’s evidence it seems to me that this has involved some confusion. Mr Miller explained that there was an occasion when he had gone inside to his new partner’s mother’s address, and he had met her mother (and her mother’s sister). This is not an address at which a child was present. Again the Department do not suggest there has been any inappropriate contact with a child, and I am satisfied there has not been.
[24] The Department raised a further occasion where Mr Miller’s electronic monitoring disclosed that he had been at a church. Mr Miller accepts this. He said that he went into the church to pick up a food parcel, and that he had not appreciated that this would amount as going to a place that he was not entitled to visit. I accept that explanation.
[25] The Department also raise a concern about Mr Miller’s general attitude. They say that Mr Miller remains argumentative with them, and that he has said that he should be allowed to go to places like public beaches. In evidence he explained that he did want to go to places like public beaches, but that he was very aware of the need not to do so when there were no children nearby, and that he was aware of this need as a protection mechanism for himself. I see no reason to doubt his explanation in this
respect. More generally I accept that Mr Miller has a negative view of the Department, and that he does not like the level of control they have over his life. But by itself that does not demonstrate a risk of reoffending of the level that would warrant a continuation of the ESO. There is a tension between the Department’s desire to keep controls over Mr Miller, and the need for him to develop as normal a life as possible. Those controls can be seen as tools to manage risk, or at least to keep close surveillance of Mr Miller. But equally the controls inhibit Mr Miller’s ability to reintegrate into the community.
[26] I also accept the point emphasised by Mr Fraser that, in any event, Mr Miller will remain on the registered list of sex offenders, and that he must meet the requirements associated with the register, including the requirement to report to local police. That will mean that there will always be a level of oversight of Mr Miller, albeit more limited than it would be with an ESO.
Conclusion
[27] In opposing the application to cancel the ESO the Department outlined the steps that had been taken, and its remaining concerns that have been addressed above. Ms Cleary submitted that the appropriate way forward was not to cancel the order but to continue a process of gradually removing the restrictions imposed by way of condition under the ESO. In that context it is the Parole Board, and not the Court that has jurisdiction to amend the conditions.14
[28] Mr Fraser argued that Mr Miller had made considerable progress, and that in the 10 months since the conditions had been relaxed there had been no suggestion that he had been engaged in any offending, or anything approaching it.
[29] I accept that it is now appropriate for the ESO to be cancelled. That is ultimately because I do not accept that the statutory pre-requisites for the continuation of the ESO under s 107I(2) of the Parole Act still exist. Mr Miller is not at a high risk of committing a relevant sexual offence in the future. The static risk assessments
14 Parole Act 2002, s 107O; see also Moore v Chief Executive of the Department of Corrections
[2019] NZHC 1212 at [39].
suggest that he is not. The remaining concerns arising from a lack of a plan for his release from the ESO restrictions have been addressed. That does not mean that it can be said there is no risk. But before a person must remain subject to the very significant controls that are involved in an ESO the high thresholds set by the statutory provisions must be met. I do not accept that those thresholds exist any longer for Mr Miller.
[30]For these reasons the ESO will be cancelled under s 107M of the Act.
Cooke J
Solicitors:
Luke Cunningham Clere, Wellington for the Respondent
2
4
0