Nepia v Chief Executive of the Department of Corrections
[2019] NZHC 2485
•1 October 2019
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2014-419-000004
[2019] NZHC 2485
BETWEEN ROBERT HENRY NEPIA
Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 23 August 2019 Appearances:
A-M Beveridge for the Applicant B Vaili for the Respondent
Judgment:
1 October 2019
JUDGMENT OF HINTON J
This judgment was delivered by me on 1 October 2019 at 11.00 am
…………………………………………………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
Ann-Marie Beveridge, Barrister, Hamilton Almao Douch, Hamilton
NEPIA v CORRECTIONS [2019] NZHC 2485 [1 October 2019]
[1] This is an application for cancellation of a 10-year extended supervision order imposed on 25 June 2014. The application is made under s 107M(4) of the Parole Act 2002 (the Act).
Background leading up to ESO
[2] Mr Nepia has a terrible history of sexual offending against small children, boys and girls. His offending occurred during the period 1979 to 1996 when he was between 15 and 32 years of age. There are many victims. They were all relatives, family friends, neighbours, children he babysat and the siblings of some of those victims. His offending was opportunistic and included taping the mouths of victims so they could not call for help and threatening a five-year-old girl victim who had been staying at his family home that if she told anyone of his sexual assaults on her, he would kill her parents and her nanny.
[3] Mr Nepia was not charged with any of his offending until 2004 and was then sentenced to eight-and-a-half years’ imprisonment for sexual offences against six male and female victims aged between five and 13 years.
[4] While in prison, attending the Kia Marama Programme for sexual offenders, Mr Nepia voluntarily disclosed a further eight sexual offences involving six victims aged between five and seven years old and received a further cumulative sentence of one year, 10 months. This further offending was also all between 1979 and 1996, or earlier. Remorse was noted as evident and taken into account at sentencing.1
[5] Mr Nepia was released on parole in August 2011, but breached his release conditions on two occasions. The first was when he stayed overnight at an address that was not his approved address and the second when he associated with a boy under 16 years of age. Mr Nepia was again released in January 2013. He was re-called for having a three-year-old girl residing at his residence. The expiry date for Mr Nepia’s sentences was 20 July 2014.
1 Department of Corrections v Nepia [2014] NZHC 1448 at [5].
[6] On 25 June 2014, Kós J imposed an extended supervision order on Mr Nepia under s 107B(2) of the Act for a period of 10 years, being the maximum term. Kós J was satisfied after considering health assessors’ reports that Mr Nepia was likely to commit a relevant sexual offence upon release. He found that there was a high, or at least moderate-to-high, risk of relevant sexual offending re-occurring within the next 10 years.
[7] In making the order, Kós J pointed to Mr Nepia’s ability to subsequently apply to vary or cancel the ESO. He said, as follows:2
[39] … Given the relative success of his treatment programme in prison, acknowledgement of the effects of his crimes, and with a satisfactory track history behind him of positive re-engagement in the community, I would expect the Court to receive favourably an application for variation or perhaps cancellation. With a genuine track record behind him of positive reintegration, Mr Nepia must be a decent candidate for such application. But the proof must be in his actual integration into the community, and I am in no position to form a view about that now.
…
[43] Now, I repeat, Mr Nepia deserves credit for his confession in prison and the fact that he has completed the Kia Marama treatment programme. I repeat what I have said already. Given a satisfactory number of years (and I would have thought that would need to be five) in which he has not reoffended, has not breached his conditions and has reintegrated satisfactorily back into the community, then this would be an appropriate case for the Court to receive an application to vary or cancel the order that I have just imposed.
Application to cancel ESO
[8] On 19 November 2018, Mr Nepia filed this application for cancellation of the extended supervision order under s 107M of the Act. He relies primarily on two health assessors’ reports, a clean record since his release, satisfactory integration back into the community, and support people and mechanisms available to him.
[9] Corrections opposes the application to cancel the order, although it would be fair to say that their opposition is not strong.
2 Department of Corrections v Nepia [2014] NZHC 1448.
Mr Lascelles’ report
[10] Mr Nepia has filed an affidavit by Mr Nick Lascelles, registered clinical psychologist. Mr Lascelles was the same psychologist who assessed Mr Nepia at the time of the ESO application. He has concluded, in a report dated 7 June 2019, that Mr Nepia now has a moderate to moderate-high risk of relevant sexual offending. (At the time of the ESO, Mr Lascelles assessed Mr Nepia overall as having a medium to high risk.) Mr Lascelles has also filed a brief supplementary report.
Mr Ngamanu’s report
[11] Corrections has filed an affidavit by Mr Robert Ngamanu, registered clinical psychologist. Mr Ngamanu was not the psychologist who assessed Mr Nepia on behalf of Corrections at the time of the ESO. Mr Ngamanu has concluded that overall Mr Nepia is assessed as being in the moderate-high category for further sexual offending. (At the time of the ESO, the psychologist instructed by Corrections concluded there was a high risk Mr Nepia would commit further relevant sexual offences upon release into the community.)
[12]Neither health assessor was required for cross-examination.
Relevant law
[13] Section 107M(4) of the Act provides that I may order cancellation of an ESO only if Mr Nepia satisfies me on the basis of the matters set out in s 107IAA that he does not pose a high risk of committing a relevant sexual offence within the remaining term of the order.
[14] Section 107IAA(1) says that a Court may determine there is a high risk of offending 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.
…
[15] Ms Beveridge, counsel for Mr Nepia, says that the Court can no longer be satisfied that Mr Nepia poses a high risk given the conclusions of the two psychologists (neither of which says there is now a high risk) and the fact that Mr Lascelles is not required for cross-examination, which she says means that his report is not disputed by the Crown.
[16] However, as Ms Vaili submits for Corrections, I have to be satisfied that Mr Nepia does not pose a high risk after a careful assessment of all of the material before me, including historical and current factors, and the experts’ reports. Further, finding there is not a high risk does not automatically result in cancellation. It is a prerequisite for exercising the discretion to cancel or vary.
[17] I also have to bear in mind that an ESO can have substantial ongoing impact on an offender, given they have already completed the sentence imposed by the Court for the offending.3
Analysis
[18] There is a heavy responsibility on the Court, and on psychologists preparing their reports, in cases such as this.
[19] After considering the matter very carefully, I have decided to cancel the ESO. Mr Nepia has satisfied me, on the basis of the criteria set out in s 107IAA(1) that he does not pose a high risk of committing a relevant sexual offence within the remaining term of the ESO order, being approximately a further five years. Further, for the other reasons advanced by his counsel, I am satisfied that I should exercise my discretion to cancel the order.
3 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006 at [32].
[20]I set out my reasons for that decision below.
Psychologists’ reports
[21] First, I am strongly influenced by the psychologists’ reports, neither of which places Mr Nepia in a high-risk category. I accept these reports have been carefully prepared by suitably-qualified experts. Mr Lascelles has prepared two reports in respect of Mr Nepia, including a report prior to the ESO being made in 2014. As noted above, Mr Lascelles assesses Mr Nepia as moderate to moderate-high risk and Mr Ngamanu assesses Mr Nepia as moderate to high risk. I have read the reports and am satisfied they both properly take account of all of the s 107IAA(1) matters.
[22] As Mr Lascelles explains in an addendum filed subsequent to his report, a moderate to high risk is in fact substantially different from a high risk in this context, although the language “moderate to high” may appear to encompass a high risk. He explains this further, as I summarise below, none of which is disputed by Corrections:
(a)On the Automated Sexual Recidivism Scale, Mr Nepia scores in the medium-high range. For New Zealand offenders scoring in the medium-high range who have child victims, the associated five-year recidivism percentage is 9.68 per cent. The group scoring in the high range reoffended at a rate of 18.75 per cent. The high-risk group therefore reoffends at about twice the rate of the medium-high group.
(b)The Static-99R instrument uses different language to describe risk. On that measure, Mr Nepia scores in the “average” range. The group of offenders in the normative sample scoring in the average range had a sexual recidivism percentage between 3.5 and 5.6 per cent over five years. The group scoring in the “well above average” reoffended at a rate between 16.4 and 36.4 per cent.
(c)On the violence risk scale: sexual offender version, Mr Nepia scores in the medium-high range. The group of offenders in the normative sample scoring in the moderate-high range had a sexual recidivism percentage of 10.5 per cent over five years. The group scoring in the
high range reoffended at a rate of 24.9 per cent. The high-risk group therefore reoffends at more than twice the rate of the median-high group.
[23] Addressing the factors in s 107IAA(1), Ms Vaili says, (a) that Mr Ngamanu opines that Mr Nepia’s urge to commit a relevant offence currently appears well-managed. In terms of (b), Mr Ngamanu opines that Mr Nepia likely maintains a predilection and proclivity for serious sexual offending, however, this may have decreased over time and is managed at present. In terms of (c), Mr Ngamanu says that Mr Nepia currently demonstrates the ability to self-regulate. In terms of (d), Mr Ngamanu opines that, while Mr Nepia accepts responsibility for his offending, it is less certain whether he is genuinely remorseful. He appears to understand the general effects of the abuse he inflicted on others, but struggles with the specific consequences on those he has offended against. Ms Vaili says all of that has to be viewed in light of Mr Nepia’s current consensual intimate relationship and the extended supervision order being in force, both of which Corrections say materially assist with Mr Nepia’s ability to manage.
[24] Overall, Ms Vaili says Corrections accepts that Mr Nepia is not at a high risk of committing a relevant sexual offence.
Offending/breaches of ESO
[25] Mr Nepia has not offended during the five years since he was released from prison in 2014. He has been living in the community over that five-year period, which a person is generally able to do under an extended supervision order, but subject to constant supervision from Probation and to a number of conditions, including a prohibition from use of alcohol and illicit drugs and non-association with children, other than with permission and under supervision. He has not breached any of those conditions.
[26] It was suggested in written submissions for Corrections that Mr Nepia had breached the ESO in 2015. However, the correct position is that a charge of breach was laid, but Mr Nepia was acquitted.
[27] In fact, Mr Nepia’s last sexual offending was in 1996, albeit that he was in prison from 2004 to 2014. His only offending since 1996 was for breach of release conditions in August 2011 and January 2013, which while serious, related to his being in the company of children rather than offending against them.
Managing in the community
[28] Mr Nepia has managed in the community and that is despite inadequate assistance at least for periods since his release. His counsel explains that he and his wife have had to live in very difficult conditions on a number of occasions, including at a camping ground. They have been homeless for over 10 months of the period since release. Again, this is accepted by Corrections. This has arisen because Mr Nepia has been unable to find accommodation that satisfies the probation officer (including not near schools or playgrounds). As Ms Beveridge points out, Mr Nepia has managed without the resources that would be available to people from more stable, financially secure backgrounds.
Support from people
[29] Mr Nepia has been greatly assisted by his wife. She was present in Court for the hearing, as were some other family members and friends. Mr Nepia has no contact with some family members. He and his wife have been in a relationship now for approximately six years and married for the last three. Corrections consider she plays an important part in supporting him. They express concern, as Kós J did in 2014, around what would happen if she were not there in terms of Mr Nepia’s proclivity to offend. However, there is no suggestion the relationship is in peril and, in any event, there is sufficient other evidence to support Mr Nepia’s application. I note that the marriage has to date survived ill-health, homelessness and the restrictions of living under the ESO regime.
[30] In addition to his wife’s support, Mr Nepia is fortunate to have the support of others, including his daughter, who was also present in Court, and a registered counselling psychologist, Mr Fry, whom he sees regularly. Mr Nepia organised that counselling, not Corrections. Mr Nepia also has assistance from People’s Project and
the Salvation Army, both of whom do very good work in Hamilton with homeless people and sexual offenders.
[31] It seems, viewed overall, that Mr Nepia has not in fact had the support someone in his position needs from Corrections, which suggests the ESO regime may not have been a big factor in his ability to manage since release.
Other factors
[32] I am also influenced by the fact that Mr Nepia volunteered further offending while he was in prison and was considered even back then to be remorseful. He was told that to rehabilitate fully he had to take responsibility and he did. He was offended against as a young person. He offended against others, causing them the same or worse harm than was done to him. He says he recognises that he must do everything he can to break the chain of offending.
[33] I am also influenced by the fact that Mr Nepia is now 55 and, as both psychologists have noted, age is a relevant factor in recidivism of sexual offending against children, in inverse proportion.
[34] There was concern at the time of the ESO that Mr Nepia did not understand that he could not be with children without full adult supervision, that reflecting a lack of understanding on his part of what was required if he were to be unsupervised in the community. That was reflected in his breaches of parole conditions prior to the ESO. He says he now entirely accepts the need to have two adults present.
[35] One of the conditions attached to the ESO has been that Mr Nepia was required to attend the Relapse Prevention Group once a month. He has done that over the last five years and wishes to continue to attend, even with his ESO cancelled. Ms Vaili has indicated that may not be possible. I sincerely hope that it is, or something equivalent. I find it inconceivable that, on the one hand Corrections opposes cancellation of the ESO and on the other, would not make attendance at the Relapse Prevention Group available to Mr Nepia if the ESO were cancelled.
[36] I am advised that Mr Nepia continues to seek support from the various groups I noted earlier.
[37] In short, he has shown the ability to cope and to seek assistance to enable him to cope.
[38] There is greater protection for the community under an ESO than without one, not the least because a mere breach of terms can lead to imprisonment. However, Ms Beveridge emphasises that Mr Nepia knows imprisonment would be imposed upon any conviction, whether or not the ESO is in place.
[39] I emphasise the need for constant vigilance on Mr Nepia’s part and on the part of everyone involved, including his wife, his adult children and any other whānau or friends who may have children come into contact with him.
[40] I also emphasise the need for him to be provided with comprehensive support from the community, including either the Department of Corrections or Ministry of Justice.
Conclusion
[41] For all of the above reasons, and the conclusions set out earlier, I make an order cancelling the extended supervision order that was imposed on 25 June 2014.
Hinton J
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