The Queen v Poutawa - [2007] NZCA 206

IN THE COURT OF APPEAL OF NEW ZEALAND
CA414/06
[2007] NZCA 206
MICHAEL FRANCIS POUTAWA
v
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Hearing:8 March 2007

Court:Chambers, Gendall and Heath JJ
Counsel:J S Jefferson for Appellant

S B Edwards for Respondent

Judgment:24 May 2007 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Chambers J)
Extended supervision order
[1]       In 1997 Michael Poutawa was convicted of seven sexual offences, including two counts of rape and one of sexual violation by rape. These charges arose out of four incidents, which occurred between 1979 and 1995.
[2]       Laurenson J imposed a term of 11 years’ imprisonment. Mr Poutawa was released from prison on 15 October 2003. But he breached his parole conditions, and was recalled to prison in November 2005. Subsequently he was released from prison again.
[3]       In February last year, the Chief Executive of the Department of Corrections applied for an extended supervision order against Mr Poutawa pursuant to s 107F of the Parole Act 2002. Venning J heard and determined that application: Chief Executive of the Department of Corrections v Poutawa HC NAP CRI 2006-441-000007 17 October 2006. He held that an extended supervision order (ESO) should be made. He said it should be in place for seven years.
[4]       Mr Poutawa has appealed against Venning J’s decision. He does not dispute his was a proper case for an ESO, but he says its term should have been no more than five years.
[5]       The sole issue on this appeal is whether the High Court was wrong in fixing a seven year term.
Was the High Court wrong in fixing a seven year term?
[6]       Two psychologists gave evidence before Venning J and addressed the matters set out in the Parole Act, s 107F(2). Niall Morrison, called by Corrections, expressed the opinion that any ESO should subsist for ten years. (That is the maximum term available:, s 107I(4).) Victor Soeterik, called on behalf of Mr Poutawa, considered the term should be five years.
[7] The judge dealt with the length of the order at [23]-[38] of his reasons for judgment. Overall, the judge tilted slightly in favour of Mr Soeterik’s assessment of the situation. In particular, the judge accepted Mr Soeterik’s assessment that Mr Poutawa was “in the low or moderate to medium risk category rather than the high risk category…suggested by Mr Morrison”: at [36]. At the same time, the judge noted Mr Soeterik’s acknowledgement that his “five years [was] somewhat arbitrary”: at [37]. The judge also noted his continuing concern that Mr Poutawa, during his term of imprisonment, had not faced up to his offending and sought treatment.
[8]       The judge concluded at [38]:
On balance, having regard to all of the information before the court and bearing in mind I am directed to impose the minimum period required for the purposes of safety of the community, I fix the ESO in this case at a period of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Poutawa

Details

AGLC: The Queen v Poutawa [2007] NZCA 206
Case: [2007] NZCA 206
Decision Date: 24 May 2007

CaseChat Overview and Summary

In the case of The Queen v Poutawa, the appellant, Michael Francis Poutawa, was convicted of multiple sexual offences and was subject to an extended supervision order (ESO) imposed by Venning J, following an application by the Chief Executive of the Department of Corrections. The appellant appealed against the length of the ESO, arguing that it should not exceed five years, while the Department of Corrections maintained that a seven-year term was appropriate. The central issue in this appeal was whether the High Court had erred in fixing a seven-year term for the ESO.

The Court of Appeal considered the broad discretion exercised by the trial judge in determining the appropriate length of an ESO. The appellant's counsel argued that the judge had wrongly not adopted the five-year term suggested by the psychologist called on behalf of the appellant, Dr Soeterik, despite accepting his assessment of the risk as being in the low to moderate category. The Court of Appeal noted that the trial judge had carefully considered the relevant factors, including the assessment of risk, the seriousness of the harm caused to the victims, and the appellant's failure to face up to his offending and seek treatment during his initial imprisonment. The Court of Appeal held that the appellant had not established that the trial judge's decision was plainly wrong, and that the seven-year term was consistent with the overall purpose of an ESO, which is the safety of the community. The appeal was dismissed, and the seven-year ESO remained in place.

In conclusion, the Court of Appeal upheld the decision of the High Court in fixing the seven-year term for the extended supervision order against Michael Francis Poutawa, finding that the trial judge had exercised his discretion appropriately in considering the various factors relevant to the imposition of an ESO.

Orders