R v Alabaster

[2023] NZHC 734

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF VICTIM(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

ORDER PROHIBITING PUBLICATION OF NAME OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE PARAGRAPH [40]

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-009-007795

[2023] NZHC 734

THE KING

v

[STEPHEN ALABASTER]

Hearing:

4 April 2023

Appearances:

C E Martyn for Crown

M J C Sandom for Defendant

Judgment:

4 April 2023

ANONYMISED JUDGMENT OF OSBORNE J

(Sentencing and disposition)

R v [ALABASTER] [2023] NZHC 734 [4 April 2023]

Remarks to the defendant

[1]                 [Mr Alabaster], you come before me today so I can decide on what is called the final disposition of your case. I will also be deciding whether or not your name should be suppressed. I can indicate to you at the outset that I will be making the orders Mr Sandom supports, namely that you are to be cared for as a care recipient and that your name be permanently suppressed.

[2]                 I am first going to go through the background involved in your 2021 offending and will then discuss why your intellectual disabilities lead to the orders I will be making.   I am going to be talking about you in the third  person, that is, saying   “[Mr Alabaster] did this or that” and so on. [Mr Alabaster], you will be getting a typed-up copy of what I say so there will be an opportunity for you later to go through what I have said to make sure you understand it.

Introduction

[3]                 [Stephen Alabaster] has pleaded guilty to two charges of indecently assaulting someone over 161 and one charge of resisting arrest.2 He appears for sentence. I am also today to consider how to dispose of the case under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP)).

[4]                 In referring to the facts today, I will be referring to the names of the two complainants. Their names are finally suppressed so, in the published version of these sentencing remarks, their identities will be anonymised by adoption of fictitious names.

The offending

[5]                 On 25 October 2021, [Mr Alabaster] was at New Brighton Beach in Christchurch.  [A]  was  sitting  on  the  beach.  [Mr  Alabaster]  approached  her. [Mr Alabaster] complimented Ms [A] on her appearance and asked if he could sit beside her. Ms [A] felt uncomfortable and stated she was about to leave.

1      Crimes Act 1961, s 135; maximum penalty seven years’ imprisonment.

2      Summary Offences Act 1981, s 23A; maximum penalty three months’ imprisonment or a fine not exceeding $2000.

[Mr Alabaster] again complimented her and started to stand. As he did so, he reached out and put a hand between Ms [A’s] legs and grabbed her pelvis area before removing his hand. He then stood up and walked away.

[6]                 Five minutes later, [B] was walking up the stairs of the New Brighton pier. At the top of the stairs, she felt [Mr Alabaster’s] hand run from the middle of her bottom to her vagina. Ms [B] yelled out “excuse me!” as [Mr Alabaster] continued past. He then stated, “I’m sorry, my arm flung out as I was walking past”. [Mr Alabaster] left that area.

[7]                 Shortly afterwards, he was stopped by police officers. As he was placed under arrest, he responded “no” repeatedly and said he was going home. He attempted to walk on. He had to be physically restrained on the ground. He refused to release his arms from under his body. Police had to force his hands behind his back to apply handcuffs.

[Mr Alabaster’s] history

[8]                 [Mr Alabaster] is 47 years old. He possesses an intellectual disability, autism spectrum disorder and major mood disorder. He qualifies as a mentally impaired person under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (ID(CCR)).

[9]                 [Mr Alabaster] has convictions dating back to 2001 and 2010 in relation to accessing child pornography. He has convictions from the same decade for wilful trespass, his 2009 conviction resulting from his return to a shopping mall after previously being banned because he had entered the female toilets.

[10]              He has subsequently been convicted on four occasions on indecency charges in relation to offending between 2013 and 2018.3

3      Conviction dated 3 September 2014 (indecently assaults female over 16); convictions dated 30 November 2016 (indecently assaults female over 16); convictions dated 11 October 2019 (indecent act with intent to insult); convictions dated 20 November 2019 (indecent act with intent to insult).

The assessment regime

[11]              Upon [Mr Alabaster’s] conviction of the current offences, he became liable to imprisonment. There therefore arose the possibility that [Mr Alabaster] might be committed to hospital or a secure facility. The regimes that apply in this situation are CP(MIP) and the ID(CCR).

[12]              Section 34 CP(MIP) provides for an order of detention in a hospital or secure facility in the following terms:

34 Power of court to commit offender to hospital or facility on conviction

(1)If the court is satisfied of the matters specified in subsection (2), the court may deal with an offender who is convicted of an imprisonable offence—

(a)by sentencing the offender to a term of imprisonment and also ordering that the offender—

(i)be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

(ii)be detained in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or

(b)instead of passing sentence, by ordering that the offender—

(i)be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

(ii)be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

(2)For the purposes of subsection (1), the court must be satisfied, on the evidence of 1 or more health assessors, that the offender’s mental impairment requires the compulsory treatment or compulsory care of the offender either in the offender’s interest, or for the safety of the public or for the safety of a person or class of person.

(3)Before the court makes an order under subsection (1)(a)(i) or (b)(i), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.

(4)Before the court makes an order under subsection (1)(a)(ii) or (b)(ii), the court must be satisfied on the evidence of 1 or more health assessors that the defendant—

(a)has an intellectual disability; and

(b)has been assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; and

(c)is to receive care under a care programme completed under section 26 of that Act.

(5)No order may be made under this section in respect of an offender who is, at the time of the conviction, subject to a sentence of imprisonment.

[13]              Section 35(1) CP(MIP) requires the court, when proposing to make an order under s 34, to order enquiries be made to determine the most suitable method of dealing with the person. Under s 35(4) a person who has an intellectual disability must during the period of enquiries (under subs 1) be assessed under Part 3 ID(CCR).

[14]              The term “intellectual disability”, as appears in s 34(4)(a) CP(MIP) and as referred to in the ID(CCR) is defined to refer to a person who has a permanent impairment that:4

(1)results in significantly sub-average general intelligence;

(2)results in significant deficits in adaptive functioning, as measured by tests generally used by clinicians, in at least two of the skills listed in subsection (4); and

(3)became apparent during the developmental period of the person.

[15]              Under Part 3 ID(CCR), ss 15–23 ID(CCR) stipulate requirements and rules for the initial assessment by a co-ordinator of the patient’s care and rehabilitation needs. Sections 24–28 discuss the care and rehabilitation plan (CARP) that is to be prepared for the care recipient.

[16]              A co-ordinator is defined as a compulsory care co-ordinator, appointed under s 140 ID(CCR) and in relation to a function, duty, or power, is responsible for the

4      Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 [ID(CCR)], s 7(1). Section 7 is subject to s 8 of the Act.

geographic area in which the function or duty is to be performed or the power to be exercised.5

Inquiries ordered

[17]              This Court in September 2022 made an order under s 35(1) CP(MIP) for inquiries to be made.

Reports received

[18]              I am appreciative of all reports received and have considered them. I have reports from:

(1)Dr Jon Nuth, clinical psychologist and neuropsychologist — report under s 27 Sentencing Act 2002 (25 July 2022) and “Psychological report” (12 September 2022);

(2)Jeremy Rees and Sean Berrill — CARP (8–9 February 2023);

(3)Sean Berrill, “Needs Assessment” (9 February 2023); and

(4)Steve Berry, clinical psychologist and neuropsychologist, “Health Assessor’s Report” (5 February 2023). This is the Court ordered report produced under s 35 CP(MIP); the report refers to reports previously obtained including:

(i)Diane Sargent, specialist clinician, “STOP Exit Report- Harmful Sexual Behaviour Community-Based Programme” (14 December 2021);

(ii)Dr Duncan Thomson, “Specialist Assessor’s Report” (19 August 2019) and Review (25 March 2020);6

5      ID(CCR) 2003, s 5(1).

6      Mr Berry did not have Mr Alabaster’s intelligence reassessed as he considered Dr Thomson’s reports sufficient.

(iii)Emerge Aotearoa Staff, “Incident Reports” (6 March–8 December 2022);

(iv)Louisa Medlicott, clinical psychologist, “Specialist Assessor’s Review, Part 6 of the ID(CCR)” (7 April 2021) and further Review (3 September 2020); and

(5)Department of Corrections EM bail suitability report (11 January 2022).

Victim Impact Statement

[19]              Ms [B] expresses frustration at the brazen conduct involved in the offending, concern for others should such offending reoccur, and indicates that she now acts extra-cautiously. She states that she is all for [Mr Alabaster] getting help rather than being punished.

[20]              Ms [A] now feels uncomfortable wearing a bikini in public and states the incident has taken a toll on her mental health.

Previous CP(MIP) inquiries and orders

[21]              [Mr Alabaster] was previously the subject of inquiries under s 35(1) CP(MIP) because of conviction for similar offending between 2016 and 2018. These matters were dealt with by this Court in 2019.

[22]              Nation J ordered a report  under  s  35(1)  CP(MIP)  that  was  authored  by Dr Thomson on 19 August 2019. This report affirmed that [Mr Alabaster] met the criteria for disposition under the ID(CCR). Dr Thomson recommended [Mr Alabaster] be cared for as a care recipient under the ID(CCR). On 14 October 2019 following receipt of Dr Thomson’s report, Nation J made an order under s 34(b)(ii) CP(MIP) that [Mr Alabaster] be cared for as a care recipient under the ID(CCR). Dr Thomson’s report noted the following:

(1)there is a long-standing pattern of [Mr Alabaster] staring at, following or making deniable physical contact with adolescent girls;

(2)due to an extremely low IQ and deficits in adaptive functioning, he is eligible for a diagnosis of intellectual disability;

(3)[Mr Alabaster] was viewed as someone with a high risk of perpetrating further, similar behaviour; and

(4)becoming a care recipient will facilitate a more intensive treatment process and hopefully establish a meaningful routine of activities that will divert [Mr Alabaster’s] attention from the unwelcome advances he makes on adolescent girls.

[23]              On 14 October 2019 the Court made an order under s 34(b)(ii) CP(MIP) that [Mr Alabaster] be cared for as a care recipient under the ID(CCR).

CARP under s 26 ID(CCR)

[24]              Mr Berry, upon determining that [Mr Alabaster] meets the criteria for disposition under the ID(CCR), recommends that [Mr Alabaster] is made a care recipient for a period of two years on a supervised level order. [Mr Alabaster’s] residence would be at a Regional Intellectual Disability Supported Accommodation Service (RIDSAS). The proposed period of two years would allow [Mr Alabaster] to undertake further treatment with the STOP organisation.

Counsels’ submissions

[25]              The Crown supports Mr Berry’s recommendation and invites the Court to make an order under s 34(1)(b)(ii) CP(MIP), making him a care recipient.

[26]              Mr Sandom, for [Mr Alabaster], observed that a therapeutic approach is required  to  the  disposition  of  this  case,  given  the  considerable   difficulties   [Mr Alabaster] experiences.   In his submission the appropriate disposition is under   s 34(1)(b)(ii) CP(MIP).

[27]              Additionally, Mr Sandom sought a permanent order under s 200 Criminal Procedure Act 2011 (CPA) suppressing [Mr Alabaster’s] name.

Determination under s 34 CP(MIP)

[28]              Having regard to the matters contained in Mr Berry’s report (including his assessment that [Mr Alabaster’s] overall intellectual ability is extremely low, and with the other information before me, I am satisfied (in terms of s 34(4) CP(MIP)) that [Mr Alabaster]:

(1)has an intellectual disability;

(2)has been assessed under pt 3 ID(CCR); and

(3)is to receive care under a CARP completed under s 26 ID(CCR).

[29]              I am further satisfied, in terms of s 34(2) CP(MIP), that [Mr Alabaster’s] mental impairment requires his compulsory care both in his own interest and for the safety of the public (including, particularly, women). Dr Thomson in 2019 assessed, based on both static and dynamic risk factors, that [Mr Alabaster] was at a high risk of sexual reoffending if at liberty to reoffend. Mr Berry concluded that Dr Thomson’s assessment has proved accurate, with the risk in fact elevated by [Mr Alabaster’s] multiple offences over several different sentencing dates despite a range of sanctions, with deviant reoffending despite intensive treatment for harmful sexual behaviour.

[30]              I further note the information before the Court indicates that [Mr Alabaster] has, during the periods he has been residing with Emerge Aotearoa under a supervision order, caused no problems. Offending has occurred only when the period of supervision ended.

[31]              In these circumstances, and as recommended by Mr Berry, I am satisfied that it is appropriate [Mr Alabaster] be detained in a secure facility as a special care recipient under the ID(CCR).

Sentencing

[32]              I am satisfied the appropriate sentence on the charges of which [Mr Alabaster] stands convicted is (as imposed on his previous, 2019, conviction) that [Mr Alabaster] should come up for sentence if called upon within one year after conviction.7

Suppression

[33]              For [Mr Alabaster], Mr Sandom seeks a permanent suppression order in relation to [Mr Alabaster’s] name.

[34]              Section 200 CPA provides for such an order. As discussed in R v L by reference to earlier authorities:8

(1)the threshold for making an order of permanent suppression is high:

(2)the Court must be satisfied:

(i)[Mr Alabaster] would be likely to suffer extreme hardship if his identity were published; and

(ii)the competing interests between [Mr Alabaster] and the public justify the making of the order.

[35]              The Court in R v L recognised the test for suppression does not distinguish between those with intellectual disabilities and those without. That said, such disability must be taken into account in assessing the likely effect of publicity.

[36]              Having regard particularly to Dr Nuth’s report,  it  is  clear  the  extent  of  [Mr Alabaster’s] disability must be central to any assessment of the need for suppression. Dr Nuth reports [Mr Alabaster] has poor social understanding and minimal insight and self-control in that regard. He is susceptible to feeling anxious

7      Sentencing Act 2002, s 110.

8      R v L [2022] NZHC 500 at [16].

and, with his history of major mood disorder, has in the past required support to maintain his psychological well-being at specific times of stress.

[37]              I am satisfied that [Mr Alabaster’s] level of disability (as in the case of the defendant in R v L) makes it difficult, if not impossible, for him to even describe how publication might affect him. I also consider it significant in the context of name suppression that [Mr Alabaster’s] victims have been victims of a random assault, not stemming from any prior association where knowledge of names is significant.

[38]I am therefore satisfied the threshold test ([34](b)(i) above) is satisfied.

[39]              I am further satisfied, as a matter of my discretion, that the interests of justice do not require that [Mr Alabaster’s] name be published. The outcome of this hearing and the personal circumstances relating to [Mr Alabaster] (including the nature of his offending) will be able to be published. Naming [Mr Alabaster] is not necessary in the public interest.

[40]              [Mr Alabaster], before I make these orders I say these things to you. You have responded extremely well to the care arrangements in the past. What the care arrangements have not been able to deliver is a safe pattern of behaviour for you when you have been released from care. It will be especially important for you to try to understand, with those giving you care, why these triggers have occurred as you have been released from care. I appreciate that will be a very hard task for you, but it is one you must grapple with. Take every advantage of the support and care you will be given to work through these issues.

[41]              I thank you for the attention you have given me, I will now be making the orders that flow from what I have just said.

Orders

[42][Mr Alabaster], I make these orders:

(1)[Stephen Alabaster], you shall be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 for two years; and

(2)you shall appear for sentence on the three charges of which you have been convicted if called on to do so on or before 27 September 2023; and

(3)your name shall not be published in relation to this proceeding — instead you are to be identified by the fictitious name Stephen Alabaster in the published version of this judgment.

Osborne J

Solicitors:

Crown Solicitor, Christchurch
Counsel:

M J C Sandom, Christchurch