The Chief Executive, Department of Corrections v Allan John Milne

[2023] NZHC 570

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-109

[2023] NZHC 570

BETWEEN

THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
Applicant

AND

ALLAN JOHN MILNE

Respondent

Hearing:	13 March 2023
Appearances:	P A Currie for Applicant A J Bailey for Respondent
Judgment:	13 March 2023

JUDGMENT OF DUNNINGHAM J

[1]                 This is application by Alan John Milne to have his extended supervision order (ESO) which was imposed by this Court on 19 October 2017,1 cancelled. Mr Milne makes his application on the basis that he is not at high risk of committing a relevant sexual offence within the remaining term of his ESO.

[2]                 The statutory test which must be met before the Court has jurisdiction to impose an ESO is found in s 107I(2) of the Parole Act 2002:

(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

1      Chief Executive of Department of Corrections v Milne [2017] NZHC 2561.

THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v MILNE [2023] NZHC 570

[13 March 2023]

(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]                 Section 107M(4) of the Act provides the jurisdiction for this Court to cancel an ESO:

(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.

[4]                 The decision to cancel an ESO  is  discretionary.  However,  in  this  case,  Mr Bailey has submitted that I should cancel the ESO because Mr Milne is no longer at high risk of committing a relevant sexual offence and so no longer meets the statutory criteria for the imposition of an extended supervision order. Furthermore, in these circumstances, the retention of the extended supervision order cannot be “demonstrably justified”, which the decision of the Court of Appeal in Chisnall v Attorney-General said it must be, because otherwise it would breach s 26(2) of the New Zealand Bill of Rights Act 1990 as a further penalty on an offender.2

[5]                 Section 107IAA(1) sets out the criteria which must be satisfied if an offender is to be considered at high risk of committing a relevant sexual offence. It states:

(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:

2      Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [218].

(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.

[6]                 All four criteria must be met before the Court even has jurisdiction to consider imposing an ESO.

[7]                 I have before  me  two  health  assessors’  reports  which  consider  those  four criteria.

[8]                 First, I have the report of Mr Craig Prince which was prepared for Mr Milne. Mr Prince is a consultant clinical psychologist. In his opinion, Mr Milne poses “a less than high risk of committing a further relevant sexual offence”. Mr Prince says that:

In my opinion, he has displayed a maturing in his attitude, he has gained more insight in recent years, his overall level of self-regulation has improved significantly, he has displayed stability in employment and his adult intimate relationship, he has not displayed concerning behaviour and he appears to be manging his risks well.

[9]                 A further report was obtained from Dr Christine Ketchmark, a registered clinical psychologist. She summarises her assessment as follows:

Overall, … [it] is the writer’s opinion that although [Mr Milne] is on a trajectory toward Level III Average risk on structured risk assessment tools, Mr Milne currently presents as having a higher than average risk of committing a further offence (which could be a relevant offence) while in the community, under certain conditions. While not currently present, he appears to have a dormant drive, desire, or urge for relevant sexual offending which could be activated under certain conditions; however, he has demonstrated a good capacity to manage his risk since his ESO commenced and there have been no observed displays of an intense drive, desire, or urge to offend when restrictions have eased. Mr Milne has evidenced a proclivity towards serious sexual offending, but evidence for predilection is mixed. Though poor emotional and sexual self-regulation have been associated with his sexual offending, there have been no significant or persistent concerns with regard to his sexual or emotional self-regulatory capacity in recent years and this is not a current concern. Overall, he appeared to demonstrate acceptance of responsibility and remorse, and displayed a more mature understanding of his role in the offending than he did prior to the commencement of his ESO.   Mr Milne described a sufficient understanding of the impact of his offending towards his victims and their families when this was explored and demonstrated a capacity for perspective-taking.

[10]              So, while both reports note a risk of relapse in certain conditions, that is not a sufficient risk to justify sustaining an extended supervision order. As the Court of Appeal said in R v Chief Executive of the Department of Corrections:3

We accept the submission of R that consequent upon Chisnall, the continuation of an ESO needs to be clearly justified. … In this regard we note Chisnall holds that s 26(2) of the NZBORA … is capable of being subject to a reasonable limit. “Strong justification” will, however, be required, and that accordingly is the lens through which we assess whether the Judge erred in confirming the order.

[11]              So, to summarise, Mr Milne is currently in an age-appropriate relationship and has not offended since his release. He no longer meets all four criteria for being at high risk of relevant sexual offending. In those circumstances, I am satisfied he is no longer at high risk of committing a relevant sexual offence and the ESO which was imposed on 19 October 2017 is hereby cancelled.

Solicitors:
Crown Solicitor, Christchurch

Copy To:

A J Bailey, Barrister, Christchurch

3      R (CA586/2021) v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53] (footnotes omitted).