Miller v Department of Corrections
[2021] NZHC 983
•5 May 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2017-485-015
[2021] NZHC 983
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: 9 February 2021 Appearances:
S J Fraser for the Applicant
F E Cleary for the Respondent
Judgment:
5 May 2021
JUDGMENT OF COOKE J
Table of Contents
Background to the ESO[2]
Statutory provisions[9]
The reconsideration of the risk[12]
Seriousness of offending[21]
The basis of the application[23]
The level of the risk[28]
Tools may exaggerate risk[34]
Denier status and dynamic information[38]
Reliance on risk assessment tools[43]
Relevant circumstances here[48]
Reintegration plan[55]
Conclusion[66]
MILLER v DEPARTMENT OF CORRECTIONS [2021] NZHC 983 [5 May 2021]
[1] By application dated 8 October 2020 Mr Miller has applied to cancel the extended supervision order (ESO) to which he is subject pursuant to s 107M of the Parole Act 2002 (the Act). The ESO was first made by this Court on an unopposed basis on 17 October 2017.1 Mr Miller has provided a short affidavit in support together with a report from Mr David Riley dated 26 August 2020. The application is opposed and a report dated 8 January 2021 in support of that opposition has been provided by Mr Paul Carlyon.
Background to the ESO
[2] The nature of Mr Miller’s sexual offending which gave rise to the original ESO is set out in the judgment of Dobson J dated 17 October 2017. The relevant offending was subject to sentencing in the District and High Court in 2008, but the relevant offences had occurred at various times before then.
[3] The earliest offending occurred in 1990. It involved two convictions for sexual violation by rape, and three for sexual violation by unlawful sexual connection. The first offending occurred between January and October 1990 when Mr Miller was 27 years of age. He had been a friend of the victim’s family. The victim was aged between 10 and 11 years. The offending occurred when he lured the victim to his house, and on another occasion when he was babysitting the victim and her brother.
[4] In February 2006 and September 2007 Mr Miller committed less serious offending in the nature of indecent assault against two females aged 15 and 16 years. This involved inappropriate touching. Both victims were also known to Mr Miller.
[5] In September 2007 Mr Miller sexually assaulted a six-year old girl who he had earlier babysat for and who he would drive from school to home. He was then 45 years of age. The sexual assault occurred in Mr Miller’s car.
[6] As indicated these matters were all identified and then subject to prosecution action around the same time. The most serious charges resulted in convictions
1 Department of Corrections v Miller [2017] NZHC 2527.
followed a jury trial. When imposing that sentence, Miller J noted the other charges that were to be addressed by the District Court and said:2
[15] I record that, unimpressed with your denials, the Crown initially invited me to adjourn sentencing so that preventative detention could be considered. I declined to do that; the fact that you deny guilt cannot justify preventative detention in itself, you have no previous convictions of a sexual nature, as I have said, and on the material before me, there is a long period in which you have not offended. It might be otherwise if other complaints were to emerge.
[7] The effective sentence imposed by the Court was that of nine years and nine months imprisonment.
[8] The sentencing in the District Court occurred on 16 December 2008.3 It is noteworthy that it involved guilty pleas to two counts of attempting to pervert the course of justice as well as the charges of indecent assault. The Court imposed a sentence of 18 months’ imprisonment for this offending, but concurrently with the sentences imposed in the High Court “in order to maximise the opportunities available to the Parole Board, that being the body which will be in the best position to assess Mr Miller’s progress at appropriate times”.4
Statutory provisions
[9] The basis upon which a court can make an ESO are set out in the Act in the following terms:
107I Sentencing court may make extended supervision order
(1)The purpose of an extended supervision order is to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.
(2)A sentencing court may make an extended supervision order if, following the hearing of an application made under section 107F, the court is satisfied, having considered the matters addressed in the health assessor’s report as set out in section 107F(2A), that—
(a)the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and
2 R v Miller HC Napier CRI-2008-041-819 (15 December 2008).
3 R v Miller DC Napier CRI-2008-041-003647.
4 At [5].
(b)either or both of the following apply:
(i) there is a high risk that the offender will in future commit a relevant sexual offence:
(ii) there is a very high risk that the offender will in future commit a relevant violent offence.
(3)To avoid doubt, a sentencing court may make an extended supervision order in relation to an offender who was, at the time the application for the order was made, an eligible offender, even if, by the time the order is made, the offender has ceased to be an eligible offender.
(4)Every extended supervision order must state the term of the order, which may not exceed 10 years.
(5)The term of the order must be the minimum period required for the purposes of the safety of the community in light of—
(a)the level of risk posed by the offender; and
(b)the seriousness of the harm that might be caused to victims; and
(c)the likely duration of the risk.
[10]The court is required to assess these questions in a particular way:
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.
…
[11] Mr Miller now makes an application to cancel the ESO, and this is also regulated by the Act in the following terms:
107M Sentencing court may cancel extended supervision order
(1)At any time after an extended supervision order has come into force, the offender who is subject to the order, or the chief executive, may apply to the sentencing court to cancel the order on the grounds that the offender poses neither a high risk of committing a relevant sexual offence, nor a very high risk of committing a relevant violent offence, within the remaining term of the order.
…
(4) The sentencing court may order the cancellation of an extended supervision order only if the applicant satisfies the court, on the basis of the matters set out in section 107IAA, that the offender poses neither a high risk of committing a relevant sexual offence, nor a very high risk of committing a relevant violent offence, within the remaining term of the order.
…
(6)If the sentencing court declines to order the cancellation of an order, the court may at the same time, and on its own initiative or on application by the chief executive, order that the offender not be permitted to apply under this section for a specified period of not more than 2 years.
The reconsideration of the risk
[12] An initial question arises in relation to the extent to which the Court reconsiders the assessment of the risk originally undertaken when the Court imposed the ESO. Here, as indicated, Mr Miller originally opposed the application for the ESO but abandoned the opposition at the hearing before Dobson J. He contested the ten year duration sought, and also the proposed conditions requiring intensive monitoring.
[13] There were, and are, two notable features of Mr Miller’s case. The first is that the relevant assessments, including the results of the formal risk assessment tools, did not place Mr Miller in the high risk category when applying the “static” risk factors. Static risk prediction tools are based on objective information such as the offending, the dates and times of the offending, the offender’s age and other information of that kind. That can be compared with other risk assessments that include “dynamic” risk prediction factors which introduce personal factors about the offender. Static risk assessments are based on factors that cannot be changed, whereas dynamic risk assessments are based on changeable characteristics (and can accordingly provide information relevant to treatment and rehabilitation). Dobson J recorded that the
application of static risk prediction tools, including the Automated Sexual Recidivism Scale (ASRS), did not record that Mr Miller was high risk. He said:
[26] When all factors relevant to the ASRS were applied in respect of Mr Miller he was assessed as being in the medium to low-risk category. Applying that static risk predictor placed the reoffending risk at 12 per cent over a 10-year period following release compared to an overall sexual recidivism rate of 13 per cent.
[14] But when the risk predictors involving the dynamic factors were introduced, a different picture emerged. Dobson J recorded:
[27] On the VRS:SO Mr Miller was assessed as being in the high-risk category with this probability of sexual reoffending being based on both static and dynamic risk predictors. On that mode of measurement he is placed in a high-risk group in which offenders reoffend in 37.4 per cent of the cases after five years and 51.8 per cent after 10 years from release. Those recidivism rates are in contrast to all sex offenders in a relevant normative sample where 11.9 per cent reoffend after five years and 18.2 per cent after 10 years. Mr Miller’s total VRS:SO score was higher than that scored for 98.5 per cent of the normative sample.
[15] The second distinctive aspect concerning Mr Miller is that he remains a “denier”. He does not accept that he committed the relevant offences. He has not participated in any significant rehabilitation programmes as a consequence. This attitude is also relevant to the information that is then used for the “dynamic” factors when applying the risk assessment tools. Because he does not accept his offending he cannot participate in the relevant rehabilitation programmes, and the information that becomes available from those programmes that normally gets entered into the assessment tools must be obtained from other sources, such as sentencing notes. I return to that factor below.
[16] After taking into account various risk assessment tools, and the views of the psychologists who had administered those tools, Dobson J accepted that an ESO should be applied, and also accepted it should involve intensive monitoring.5 In terms of the length of the ESO Dobson J imposed a term of eight rather than ten years. When doing so he noted:
[58] I am not adequately informed to quantify the extent of the difference of risk Mr Miller will present in six years’ time, as compared with the level of
5 Department of Corrections v Miller, above n 1, at [46].
that risk in 10 years’ time. He will at those points be respectively 61 and 65. Were he not a denier, the cohort of such offenders who are prepared to seek help for their sexual deviancy would enjoy a reduction in the risk they pose between those ages. Without anticipating that Mr Miller will, post-release, cease to be a denier of his offending behaviour, I am inclined to place a small measure of weight on the prospect that, post-60, the level of risk he poses may reduce to some extent.
[17] Given the careful assessment that has already been made by Dobson J, a question arises as to the extent to which this Court should reconsider matters that have already been assessed in the Court’s previous decision.
[18] The answer to that question is found in the terms of s 107M itself. Section 107M does not require there to have been a change in circumstances. It simply contemplates that the Court will again assess the requirements of s 107IAA. This necessitates the Court considering the question afresh. The potential problem with repeated applications based on the same information is addressed by s 107M(6). This provision allows the Court to prevent a further application being made under s 107M for a period of two years. Having said that, the previous decision of the Court will obviously be influential, and it may be that there will usually be some change in circumstances before an order of cancellation is made. The Court is unlikely to cancel a previous order on the basis of re-running the same arguments based on the same evidence.
[19] That is not the situation here, however. There is now different information before the Court in the form of the two psychologists reports from Mr Riley and Mr Carlyon. Mr Carlyon has again applied a number of risk assessment tools as part of the evaluation. There is also a change arising from the passage of time.
[20] Mr Miller remains a denier, and accordingly he has not participated in any substantial rehabilitation programmes. This is not a case where the results of rehabilitation programmes can be said to have changed the relevant risk profile. But neither is the Court being asked to re-evaluate the same questions based on the same evidence. There are new matters arising from the new evidence that should properly be addressed on the merits. I proceed on that basis.
Seriousness of offending
[21] There is also an issue concerning the relevance of the seriousness of the offending. Section 107I speaks only of a “high risk” of committing a relevant sexual offence, and the relevant sexual offences set out in s 107B involve offences ranging from sexual violation6 through to indecent assault.7 There may well be more concern about an offender who has a high risk of repeating the more serious offences. The seriousness of the potential harm caused to victims is expressly relevant to the term of the ESO under s 107I(5), but otherwise that feature is not expressly mentioned. It seems to me that the seriousness of the potential offending also comes to be considered when the Court exercises the discretion to make an ESO under s 107I(2). The Court may decide not to make such an order even when there is a high risk of offending at the less serious end. That is not to say that the Court should not make an order in those circumstances, but it is relevant to the decision in question.
[22] It would appear, however, that the discretion to cancel the order under s 107M can only arise if the Court is persuaded that the offender no longer meets the risk threshold prescribed by the sections. Moreover, when the Court considers an application under s 107M it is not able to reconsider and vary the term, or other conditions of the ESO. The Court’s decision is “binary” — the ESO is either cancelled, or it remains in force.8
The basis of the application
[23] Under s 107F(2) the initial application for an ESO must include a report from a “health assessor”.9 Whilst it is not mandated, the reports of such qualified experts will also be highly relevant to an application for cancellation under s 107M. Here Mr Miller has provided a report from Mr David Riley, who is a very experienced psychologist in this area. He has over 40 years’ experience as a psychologist within the Department of Corrections, including 10 years as the Director of the Department’s Psychological Services. Whilst I will address the content of his report in more detail
6 Crimes Act 1961, s 128B(1).
7 Crimes Act 1961, s 135.
8 Moore v Chief Executive of the Department of Corrections [2019] NZHC 1212 at [39].
9 See Sentencing Act 2002, s 4; a “health assessor” is defined to essentially mean either a psychiatrist or a psychologist.
below, a key conclusion he has reached is that Mr Miller’s risk of reoffending is moderate, and if it were to occur it would be in the medium to longer term.
[24] In responding to the application the Chief Executive has provided a report from Mr Paul Carlyon, an experienced psychologist consulting to the Department. His report sets out the results of a number of risk assessment tools that have been applied in relation to Mr Miller. In addition to outlining the results of the application of those tools Mr Carlyon has expressed the view that Mr Miller is at a high risk of engaging in further relevant sexual offending.
[25] Both experts agree that the application of the static risk assessment tools lead to a conclusion that Mr Miller is only at medium or low risk of the qualifying reoffending. Mr Carlyon says:
Mr Miller’s ASRS-R score of one places him in a group that has been classified as at medium-low risk of sexual offending based on the comparative level of re-offending for those in the validation sample for this measure. For all sexual offenders with the same score in New Zealand validation sample, the 5-year recidivism rate is 4.52% (95% confidence interval 3.91 % - 5.22%)
and for 10 years is 6.83% (95% confidence interval 6.07% - 7.67%). ASRS-R medium-low risk classified offenders with convictions for sexual offences against children are reconvicted for sexual offending at a rate of 6.93% in the five-year period following release, and at a rate of 9.62% in the 10-year period following release. The overall sexual recidivism rates for those with a history of child sexual offences, for five- and ten-year periods, are 6.30% and 8.97%, respectively. The ASRS-R probability of sexual recidivism is based solely on static risk predictors.
[26] Mr Carlyon has applied the other risk assessment tools that include the dynamic factors, including “Violence Risk Scale – Sexual Offence Version” (VRS– SO). This has led to him to conclude that Mr Miller is high risk. Mr Carlyon reported:
Analysis of Mr Miller’s sexual recidivism risk as indicated by the current VRS-SO analysis that accounted for any treatment change, of which there was none observed, indicated a five-year recidivism risk in the range 38.3% - 62.8%. The 10-year sexual recidivism risk, also accounting for any treatment change, was in the range 55.1 % - 73.8%. The base rate for all sex offenders in the prison-based normative sample was 11.9% after five years and 18.2% after 10 years. The VRSSO total score placed Mr Miller in … [the level] … well above average range. The risk estimates reported here in relation to Mr Miller reflect a pro-rated dynamic score because two items (Emotional Control and Sexual Offending Cycle) were omitted due to a lack of information consequent on Mr Miller’s denial of his offending.
[27] Both experts were cross-examined at the hearing before me. Having considered their reports, and the issues explored in cross-examination (and in questions that I asked) I have formed the view that, notwithstanding Mr Carlyon’s assessment, there are circumstances in which Mr Miller could be regarded as not falling in the high risk category. This arises from a number of factors that I will address in turn.
The level of the risk
[28] Before addressing those factors, it is first important to understand what the sections mean by “high risk”.
[29] It is notable that the requirement to show that there is a “high risk” in relation to relevant sexual offences is a lower threshold than the requirement for a “very high risk” in relation to relevant violent offences.10 Section 107IAA also sets out what must be satisfied. So for determining that there is a high risk that the offender will commit a relevant sexual offence the matters set out in (a)–(d) must apply. The words in those requirements suggest the standard is a high one: — an “intense” drive, desire or urge to commit the relevant offence; a “predilection or proclivity” for the offending; “limited” self-regulatory capacity; and the relevant “lack of acceptance” or “absence of understanding”.11 This language is consistent with a high level of risk because of an apparent absence of an ability to resist reoffending. It suggests that the reoffending is likely. Such a high standard is understandable and appropriate given that the offender is being held subject to restrictive conditions notwithstanding they have reached their sentence end date. There must be a significant risk that potential victims are being protected against before these restrictive requirements of an ESO are imposed. As the Court of Appeal said in Simmonds v The Chief Executive of the Department of Corrections:12
[30] … while the threshold test for an extended supervision order is very high, and involves the offender being a very serious danger to the community, the concern that such dangerous people be supervised cannot be used to warp
10 Section 107I(2)(b).
11 Section 107IAA(1).
12 Simmonds v The Chief Executive of the Department of Corrections [2017] NZCA 172 (footnote omitted). See also Shortcliffe v Chief Executive of the Department of Corrections [2016] NZCA 597 at [13]; and Chief Executive of the Department of Corrections v Chisnall [2019] NZHC 3126.
the natural meaning of the words in s 107C. Parliament has set out precise limits. It plainly did not intend to make all persons who might be a high risk to the community liable to supervision. We should not extend the clear limitations of the section by imposing an unnatural meaning on plain words. This is particularly so when s 22 of the New Zealand Bill of Rights Act 1990 is considered. Section 22 provides that “[e]veryone has the right not to be arbitrarily arrested or detained”. The Chief Executive’s interpretation would extend the application of s 107C(1)(a), which in turn would extend the interference to offenders’ liberties after they have served a sentence, contrary to s 22 of the New Zealand Bill of Rights Act. Such an interpretation should not be favoured by the courts when the natural interpretation has a lesser impact on offenders’ liberties.
[30] For the same reason both the Court, and the health assessors involved in the assessments, need to resist any tendency to prefer the safety of the community. It may seem easier to adopt a precautionary approach, particularly for an offender who has offended more than once in an obviously very harmful way. The rule of law requires the high standards set by the statute to be applied. And it must be remembered that the relevant offender will have already served their sentence, and that the ESO can be seen as a significant additional restriction on individual liberties.13
[31] It also seems to me that a conclusion that there is a “high risk” must involve a risk of committing the relevant sexual offences that is significantly higher than the normal recidivism rates. In that context someone who has already committed the qualifying sexual offences is more likely to reoffend than ordinary members of the community. But the higher risk of reoffending already apparent for those who have already committed such an offence cannot be the threshold the statute is referring to. It seems to me that there must be a significantly higher risk than usually apparent before an ESO can be imposed (the absence of which would require the order to be cancelled).
[32] In Mr Miller’s case, the application of the static risk factors showing a likelihood of reoffending of approximately five per cent in a five year period, and seven per cent over a ten year period are lower than the overall recidivism rates for child sex offenders. Those results suggest that Mr Miller could not be considered a high risk. Once that point is reached, the justification for the ESO here really hinges on factors personal to Mr Miller and whether they significantly increase his individual
13 See generally Chief Executive of the Department of Corrections v Chisnall [2019] NZHC 3126.
risk. It is those factors that the mandatory requirements set out in s 107IAA(1) need to be directed to.
[33] Attempts have been made in the risk assessment tools to assess such dynamic factors, and it is the application of those factors that result in a predicted recidivism rate of approximately 38 per cent over five years, and 63 per cent over ten years. But considerable care needs to be taken when applying the risk prediction models that suggest the higher levels of risk. I say that for a series of reasons.
Tools may exaggerate risk
[34] First, I accept Mr Riley’s point that there are factors that suggest that the risk prediction tools may exaggerate the risk of reoffending because of the data sets that are used to calculate the risk.
[35] Mr Riley explained that studies have suggested that over the last three decades rates of sexual recidivism are declining. Mr Riley referred to two studies in that respect. This included work in 2012 which showed that of 527 child sex offenders released in 1992/93 followed up in 2003, 60 had reoffended (13 per cent), but for the 542 child sex offenders released in 2001 followed up in 2011, only 30 had (5 per cent). Mr Riley explained that the results of this kind of analysis had not found their way into the tables that were appended to the risk assessment reports, and accordingly the assessments for offenders such as Mr Miller may be exaggerating the reoffending risk.
[36] That concern may be greater in relation to some of the tools used by Mr Carlyon. Mr Riley pointed out that the VRS–SO tool used base data that was primarily made up of Canadian sex offenders released from prison with an overall recidivism rate of 18.2 per cent over ten years. When compared with the results referred to above, which suggest that the recidivism rate may now be less than five per cent, Mr Riley formed the view that “there are reasonable grounds for assuming that the recidivism estimates stemming from the VRS–SO provide an unduly pessimistic picture of Mr Miller’s prospects when in the wider community”.
[37] When this issue was raised with Mr Carlyon, he indicated that he relied on the developers of the tools to update the information as regularly as they can, and as a
clinician he was reliant upon them. He accepted that it was possible that they might not have done so and that the percentage risk could have been recorded as higher as a consequence. That was the case for both the static and dynamic assessments, including in relation to VRS–SO.
Denier status and dynamic information
[38] The second point is that Mr Miller’s status as a denier may have inaccurately raised his real risk.
[39] I accept Mr Riley’s evidence that the fact that an offender denies his offending has no impact on the risk of reoffending. Mr Riley’s evidence in this respect was not contradicted by Mr Carylon. Mr Riley explained that denial, minimisation, and lack of victim empathy have been found in multiple examinations of sex offender recidivism risk studies to have minimal or no relationship to subsequent downstream offending. At first blush that seems surprising. But the reality is that some offenders can admit their offending, participate in rehabilitative programmes, express regret and then profess a commitment not to reoffend, but then go on to reoffend. Sometimes that may be because they are particularly manipulative. On the other hand a denier may have that status because, in the words of Mr Riley they have “intense shame and abhorrence which they experience about their behaviour, and particularly when entering prison, see their denial as an albeit limited defence against the opprobrium and potential vilification and menacing reaction of prisoners …”. In other words denial is a neutral factor. I accept that the fact that someone is a denier is not highly material to whether they have the required high risk of reoffending.
[40] I recognise that s 107IAA(1)(d) effectively mandates this as a factor that must be considered and applied. But the factors in s 107IAA(1) are cumulative — the other factors must also be demonstrated. Denial does not, in itself, demonstrate the required high risk. So Parliament has realised the position is more complicated. I also acknowledge what the Court of Appeal said in Chief Executive, Department of Corrections v Alinizi when addressing these requirements.14 Brown J said for the Court:
14 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468.
[36] … we consider that a Court is likely to be satisfied that the statutory prerequisite in s 107IAA(1)(a) is present where there is nothing to suggest that such a trait formerly present no longer subsists. A court will very likely come to such a conclusion where, as here, an offender categorically denies the sexual offending for which he was convicted and as a consequence has been unwilling to undertake treatment to discuss sexual offending.
[41] But having heard Mr Riley’s evidence, and having been referred to the studies he relies upon, I accept that this research demonstrates that denial does not demonstrate a higher risk of reoffending by itself.
[42] There is a second related factor. The fact that someone is a denier also means that they will not have participated in rehabilitative programmes in any substantial way, and accordingly the information normally obtained during the participation in those programmes is not available to be used as input into the dynamic assessment tools. As Mr Carlyon explained, this will mean that those tools will have to have access to other material, such as sentencing notes, for the required information. So the inputs into the dynamic risk assessment processes are, at least to some extent, compromised.
Reliance on risk assessment tools
[43] The above considerations also raise an issue as to the extent the Court should rely on the risk assessment tools. There can be no difficulty in relying on static risk assessment tools as they are able to assess the risk of recidivism on the basis of hard data. But they are only tools. The statute requires the Court to receive a report from a health assessor, and because of that it is likely the tools will be employed. But ultimately the task involves the Court forming a judgment. In Moore v Chief Executive Department of Corrections Wylie J made this point when declining to cancel an ESO.
He said:15
[41] The requirement that the Court “be satisfied” involves the exercise of judgment; it is not related to burden, or standard of proof issues. The Court is not constrained by the opinions of the health assessors called by the parties. Rather, what is required is a careful assessment of all the historical and current factors, along with the expert opinion, bearing in mind that an ESO can have substantial ongoing impact on an offender who has already completed the sentence imposed by the Court for the offending.
15 Moore v Chief Executive Department of Corrections, above n 8 (footnotes omitted).
[44] In that context Mr Riley referred to the views expressed by Dame Susan Glazebrook some 10 years ago. She described the development of static and dynamic risk assessment tools.16 Her article summarises the issues covering their use. She noted that care was required in using them:17
It has even been suggested that, because of the limitations that arise with risk assessment tools, predictions of risk merely place a “veil of science” over an assessment which is, at its core, a moral and ethical question regarding which offenders pose the greatest danger to society.
[45]She went on to say:18
In the risk assessment context, risk assessment tools remain useful measures. For example, the fact that a risk assessment tool shows that an offender belongs to a group in which a certain percentage have reoffended at ten years following release from prison is able to give the courts a relatively clear understanding of the level of reoffending that has occurred among similar offenders.
Despite their limitations, risk assessment tools are more accurate than unstructured clinical assessments. The courts must have the best evidence possible and one distinct advantage of risk assessment tools is that they illuminate for the court the factors on which a risk assessment decision is made. Such illumination creates greater transparency about the risk assessment process and greatly assists the courts in the decision-making process.
[46] Mr Riley also referred to the views of international experts, such as Professor James Ogloff, that generally static assessments have greater predictability over the longer term.19 A very valuable study published in 2018 assessed the predictive properties of dynamic sex offender risk assessment instruments by considering a number of such instruments from a number of countries, including New Zealand.20 The conclusion was that although dynamic risk assessment instruments did significantly predict recidivism, they did not provide significantly increased predictability over the static assessments. The authors’ view was:21
16 Justice Susan Glazebrook “Risky Business: Predicting Recidivism, Psychiatry, Psychology and Law” (2010) 17 Psychiatry, Psychology and Law 88 at 120.
17 At 96.
18 At 97.
19 See, for example, Melissa Wood and James R.P. Ogloff, “Victoria’s Serious Sex Offenders Monitoring Act 2005: Implications for the Accuracy of Sex Offender Risk Assessment” (2006) 13(2) Psychiatry, Psychology and Law 182 at 188.
20 Jan Willem van den Berg and others. “The predictive properties of dynamic sex offender risk assessment instruments: A meta-analysis.” (2018) 30(2) Psychological Assessment.
21 At 10.
… it could be argued that the somewhat small incremental validity of dynamic over static risk assessment instruments does not justify the additional efforts and costs of using them simultaneously. However, given the importance of making the correct decisions in treatment referral and treatment goals, and to make any effort to further decrease the number of victims of sexual offending behavior, we believe the (additional) use of dynamic risk assessment instruments is both valuable and justified.
[47] Given this research, and these views, whilst I accept that the risk assessment tools that include dynamic factors and the views of Mr Carlyon are legitimate, and properly taken into account in assessing the factors in s 107IAA(1), I do not accept the output from the dynamic risk assessment tools at face value. The view that Mr Miller’s risk is higher than the static risk factors suggest may be open given the output of the models employed by Mr Carlyon, but I treat this information as only one input into a more holistic assessment. I accordingly approach the question on that basis, and with a level of caution.
Relevant circumstances here
[48] I accordingly need to consider Mr Miller’s case having regard to the mandatory standards set by s 107IAA(1).
[49] The first factor relevant to those standards is the nature of Mr Miller’s past offending. He committed serious sexual offences against a child in 1990. Later in 2006 and 2007 he committed two further sets of sexual offending, also against children or young girls, one of which was more serious than the other. The fact that he has committed such offending on three separate occasions against different victims, alongside the nature of that offending, demonstrates the features referred to in s 107IAA(1) are potentially apparent.
[50] Mr Miller was not sentenced to preventative detention at that time, however. One factor mentioned at sentencing was there had been a gap between the 1990 and 2006/07 offending.22 The fact that no offending was reported in that period does not mean that the features in s 107IAA(1) did not still exist, but it is relevant as it may suggest his offending is able to be avoided.
22 R v Miller, above n 2 at [15].
[51] It is also relevant to recognise that all the offending was revealed at the same time. Mr Miller is not a person who has been caught, subject to Court sentences and then reoffended again. The fact that his offending has been identified and now subject to a lengthy prison term is relevant to the assessment of whether he remains a person who has the attributes identified in s 107IAA(1). Both Mr Riley and Mr Carlyon noted that he is now much older and the recidivism rates fall for older offenders. That feature is, of course, taken into account in the static risk assessment tools.
[52] There is another factor of significance. 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.
[53] 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.23
[54] These considerations lead to the final factor emphasised by Mr Riley which I view as of considerable significance in this case when applying the factors in s 107IAA(1).
23 Vincent v New Zealand Parole Board [2020] NZHC 3316. See particularly [101].
Reintegration plan
[55] Mr Riley referred to leading authorities on sex offender rehabilitation. This included the view that:24
In brief the major weaknesses (of risk management models) include the tendency to focus on risk management rather than positive ways of living. The lack of attention paid to personal identity and human needs, and the perception of offenders as bundles of risk factors rather than as integrated complex beings who are seeking to give value and meaning to their lives.
[56] What this recognises is that 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.
[57] Here the static risk prediction instruments indicate only a low or moderate risk of reoffending. It is the dynamic factors that are said to give rise to the required high risk. The dynamic risk factors are those that are changeable, such as the environment into which Mr Miller may fully re-enter the community. Focussing on that environment focusses on the dynamic risk factors that are said to be decisive.
[58] It is to be recognised that the previous sexual offending Mr Miller has engaged in has been against children and young girls that he knew. He has not offended against strangers. He has offended against children and young girls he has had an association with. For that reason the careful management of his environment without the ESO can minimise the risks associated with his prior behaviour to the point where he may no longer be regarded as high risk, particularly bearing in mind his age and his
24 Ward T Marshall WL “Good Lives, Aetiology and the Rehabilitation of Sex Offenders: A Bridging Theory” (2004) 10(2) Journal of Sexual Aggression 153.
relatively low risk assessment on the static factors. Environmental factors will likely be very important.
[59] Mr Miller gave evidence of where he would live if the ESO was cancelled. He wished to do that near to his brother and his brother’s wife. He explained that his children and grandchildren would live in the North Island, and that moving to the South Island would involve him being away from his family, including his grandchildren. He explained that his family was nevertheless supportive of him. He has a particular association with his brother, who is not well, and says he gets on with his brother’s wife extremely well. He explained that he had been in contact with WINZ and that no property was available, and that he would live in a motor camp or a backpackers if the application were successful.
[60] I do not regard this as a viable plan. In that environment — particularly a backpackers or motor camp — Mr Miller would have to be regarded as high risk. I accept, however, that a comprehensive plan could be developed in a way that would mean that Mr Miller would not be regarded as high risk. Mr Riley expressed the view that Mr Miller presently does not have an appropriate plan in place. He said he was concerned about that. In cross-examination he said that Mr Miller has been “popped in a freezer” and that he was “going to be turned out at some stage to thaw and he won’t have moved on”.
[61] I asked Mr Riley about what other support structures might be of assistance for someone in Mr Miller’s position. In light of what he said it seems to me that the following elements would be involved that would potentially allow Mr Miller to obtain an order cancelling his ESO:
(a)Mr Miller would need to find a house, as close as possible to his brother and his wife. In that context it seems to me that a case for priority accommodation could be made to WINZ. The presentation of this judgment to WINZ may assist in facilitating that.
(b)Both Mr Miller’s brother, and his brother’s wife should provide direct information illustrating the level of support they can give Mr Miller to
reintegrate into the community, and how much interaction they can have with him in that process. That could simply be provided by way of correspondence from them.
(c)Mr Miller’s other family, and particularly his children also need to provide direct information about their support, and the level of interaction they can have with him in the new environment. Wider family support may well be important in that context. Again that could be set out in correspondence.
(d)Some form of other community support may also be helpful. That may take the form of community support groups, or even psychological assistance. What that means is that, in conjunction with the other factors referred to above, some form of community is available for Mr Miller to associate with if the order is cancelled.
(e)Whatever possibilities there are for employment should also be explored. That may presently be unrealistic, but it would help if there is some exploration along those lines. Mr Miller mentioned that he would like to resume truck driving.
(f)Once the above matters are attended to, they should be formulated into a plan which can be reviewed by Mr Riley and Mr Carlyon, or by others of similar standing.
[62] The above should not be taken to be directions or orders of the Court. They are simply my preliminary views on what will likely be necessary for Mr Miller to put forward to obtain a decision cancelling the ESO. If the above had been provided and had been supported by Mr Riley or Mr Carlyon (or equivalent experts) I would have been minded to cancel the ESO. The short point is that I do not see that there will be any material change in the level of the risk between now and the end of the period of the ESO. Keeping the ESO in place by itself does not achieve much. But with a well- formulated plan of the kind referred to above I would accept that Mr Miller could be considered as no longer a high risk.
[63] 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. 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.
[64] At the hearing I discussed with Mr Fraser the potential for the production of such a plan. I gave him leave to file further written submissions and provide what could be provided at that stage. Mr Fraser provided a draft plan which had been discussed with Mr Riley. The document so provided is short of what I regard as necessary to meet the matters I refer to above. But I strongly support a continuation of the process to produce such a plan.
[65] I also do not agree to Mr Fraser’s suggestion that this application be adjourned to allow that process to be continued. That is a possibility that I raised at the hearing. But the materials now put before the Court do not yet provide me with a confidence to allow the order to be cancelled. Moreover it seems to me that the scheme of the legislation contemplates further applications can be made.
Conclusion
[66] For these reasons the application to cancel the ESO order is dismissed. I encourage Mr Miller and the Department to work on the plan along the lines described above. I make no order under s 107M(6), and on the contrary encourage a further application if the plan along the lines described above can be formulated.
Cooke J
Solicitors/Counsel:
S J Fraser, Wellington for the Applicant
LukeCunninghamClere, Wellington for the Respondent
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