Wilson v Chief Executive of the Department of Corrections
[2013] NZCA 144
•9 May 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA482/2012 [2013] NZCA 144 |
| BETWEEN STEWART MURRAY WILSON |
| AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS |
| Hearing: 11 April 2013 |
| Court: O'Regan P, Harrison and Wild JJ |
| Counsel: A J McKenzie and L M Drummond for Appellant |
| Judgment: 9 May 2013 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by O’Regan P)
Introduction
This is an appeal against a decision of Lang J in which the Judge made an extended supervision order in respect of the appellant for a period of 10 years commencing on 1 September 2015.[1] It had been intended that this appeal would be heard at the same time as the appellant’s appeal (CA632/2012) against a decision of Ronald Young J dealing with an application for judicial review of the decision of the Parole Board applying special release conditions to the appellant.[2] However, the appellant was recalled to prison on the day before the two appeals were due to be heard. The Court did not proceed with the hearing of appeal CA632/2012, but did hear the appeal against the decision of Lang J, and it is that appeal to which this decision relates.
[1] Chief Executive of the Department of Corrections v Wilson [2012] NZHC 1634.
[2] Wilson v New Zealand Parole Board [2012] NZHC 2247.
Under s 107I(2) of the Parole Act 2002, an extended supervision order may be made by the Court that sentenced an offender. The Court must be satisfied that the offender is likely to commit a “relevant offence” after release from prison. “Relevant offences” are, broadly speaking, sexual offences against persons under the age of 16 years.[3]
Grounds of appeal
[3] Parole Act 2002, s 107B.
The first ground of appeal is that the determination of the Chief Executive’s application for an extended supervision order was premature. The decision of Lang J was made in July 2012, but the extended supervision order will not come into effect until 1 September 2015. The appellant argues that the consideration of the Chief Executive’s application should have been deferred until closer to the date on which it was proposed the extended supervision order would come into effect. Consideration of this ground of appeal requires us to address a jurisdictional issue, given the nature of the right of appeal in relation to extended supervision orders, as well as the substantive point.
The second ground of appeal is that the extended supervision order should not have been made because the High Court did not have a proper basis for being satisfied that the appellant was likely to commit a relevant offence against a child or young person after his release date. The principal focus of this ground of appeal was an argument that the appellant’s offending history, which related mainly to adult women, did not indicate any proclivity for sexual offending against children or young persons.
Before addressing the issues requiring determination, we will summarise the factual background.
Factual background
The appellant was sentenced by Heron J on 15 March 1996 to a term of 21 years imprisonment for serious sexual offending involving women and children, violent offending involving women and children, including cruelty to children, stupefying adults and bestiality.[4] Heron J described the appellant’s offending as follows:[5]
These crimes were committed on women and girls over a period of some 25 years and had a number of common features. Women and girls often their daughters, would be taken into your home on the pretext of friendship. Before long you true intentions would become plain and they would be subjected to assaults, indecencies and often raped. They were in most instances cowed by the violence you dealt them. In many cases I find they were often drugged by you through the widespread excessive use of sedatives or sleeping pills. The more gross examples are reflected in the convictions on the stupefaction charges, but I am sure that the use of drugs was more widespread than that. Compliance with your wishes would be obtained by force or threats of force. A punch in the face seems to have been your stock in trade but often more subtle pressures were used. This long period of time saw a number of women come into your home and sometimes you went into their homes. You had the ability to detect women who were vulnerable, often recovering alcoholics and those who were seeking security and friendship and company often after having separated or generally when at a low period in their lives. This included answering advertisements from women seeking company and you made it your business to win their confidence so you could commence relationships with them. Once you had established such a relationship the treatment you handed out to these women and their children, was viciously cruel and degrading. You regularly stupefied them as I have said, and you took control of their lives to an extraordinary degree. This involved in some cases, accompanying them to their own doctor and taking control of their treatment and medication recommended for them. You dictated the clothing they should wear and in some cases damaged their teeth, all designed to destroy what little dignity they had.
You knew quite a deal about hypnotic drugs and finally when you were arrested a remarkable array of medication, including the hypnotic chloral hydrate was found in your home.
[4] R v Wilson HC Wellington T104/95, 15 March 1996.
[5] At 2.
Prior to the offending for which he was sentenced, the appellant had had previous convictions for assault on females, burglary, living off the earnings of a prostitute and assault on a child. There had been no convictions entered between 1981 and 1994, but as Lang J noted, it was during that 13 year period that most of the offending for which the appellant was sentenced on 15 March 1996 was occurring.[6]
[6] At [32].
The focus of the application for an extended supervision order was on the appellant’s likelihood of committing relevant offences (i.e. sexual offences against persons under 16 years of age). In that context we note that of the many offences for which the appellant was sentenced by Heron J three related to offending against persons under 16 years of age. One of these was the rape of the daughter of the appellant’s then wife. This was committed in front of his wife. Heron J described it in these terms:[7]
Mention must be made of the rape in front of her mother of [R]. I suspect in this incident that once again [L] who was present, and [R]’s mother, were affected by drugs. The events were so grossly cruel that legal proceedings were immediately taken and non-molestation orders followed. The girl was put under the care of another family. You then pursued this girl despite the fact that she was only 13 or 14. You kept her photograph and you pestered the persons looking after her. I detected in this Courtroom in the uninterrupted silence that accompanied her evidence that the jury were having difficulty in accepting that a mature man of 35 in an angry mood would rape a young girl in the presence of her mother to demonstrate who was in control of that house.
[7] At 3.
The other two relevant offences were committed in 1985 and 1992, and involved the indecent assault of a girl under the age of 16 years. Lang J said that the details of that offending were sketchy, though it seemed that one charge involved touching a girl’s breast.
The sentence of imprisonment for 21 years consisted of a series of cumulative and concurrent sentences. The cumulative sentences were sentences of imprisonment for 10 years (for rape), eight years (for rape) and three years (for wilful ill-treatment of a child).
Ordinarily the appellant would have been entitled to be released on parole after completing two thirds of his sentence on 2 September 2008. However, the Parole Board exercised its power under s 107(3) of the Parole Act to require the appellant to remain in prison for the whole of the sentences he was serving for serious sexual offending. The appellant remained in custody under the s 107 order until his “applicable release date” of 1 September 2012, by which time he had served 18 years of his sentence less three months.[8]
[8]The appellant was actually released on 29 August 2012, the nearest preceding “release day” to his release date of 1 September.
The “applicable release date” of 1 September 2012 had to be calculated under s 107 without reference to the cumulative sentence of three years imprisonment for wilful ill-treatment of a child. The Parole Act required the appellant to be released on his “applicable release date”. However, the appellant’s “statutory release date” is calculated on a basis that includes that three year cumulative sentence, and so is 1 September 2015. This means that the appellant is liable to be recalled up until his statutory release date of 1 September 2015 under s 29 of the Parole Act (and, as mentioned earlier, he has now been recalled), and the Parole Board can impose release conditions that extend six months beyond that date, that is until 1 March 2016.
There are two sets of restrictions that were placed on the appellant’s freedom following his release from prison. First, the Parole Board placed special release conditions on the appellant that could have been in force until 1 March 2016. These conditions were the focus of the intended judicial review appeal mentioned at [1] above. Second, Lang J imposed an extended supervision order on the appellant for the statutory maximum of 10 years. The extended supervision order does not come into force until the appellant’s statutory release date of 1 September 2015.[9] This is the subject of the present appeal.
Was the determination of the application premature?
[9] Parole Act 2002, s 107L(1).
On behalf of the appellant, Mr McKenzie argued that Lang J ought to have adjourned the application so that it could be determined at a time closer to the date on which it will have effect on the appellant, which is 1 September 2015 (that is, the appellant’s statutory release date). He said that if this course had been taken it would have allowed the Judge considering the application to take into account more up to date information about the appellant and also to take into account the appellant’s conduct during his time on parole. As noted earlier, the appellant has now been recalled, so that consideration diminishes in importance.
The essence of Mr McKenzie’s argument was that, as an extended supervision order is a retrospective punishment that is additional to the punishment imposed on sentence, and therefore inconsistent with s 26 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), it should be treated as a remedy of last resort and imposed only where no alternative exists.[10] Mr McKenzie argued that deferral of the hearing of the application to allow for the consideration of all possible alternatives would have been the appropriate way of recognising the importance of the s 26 right.
[10]Section 26(2) of the New Zealand Bill of Rights Act 1990 provides that no-one who has been convicted of an offence shall be tried or punished for it again.
The High Court Judge dealt with this issue briefly.[11] He stated that the submission that it would be premature to determine the application had a superficial attraction because the manner in which the appellant complied with his release conditions might have some bearing on the term for which an extended supervision order should remain in force. However, the Judge held that the primary focus should be on the issue of whether it was likely that the appellant would commit a relevant offence when his release conditions expired, and that there was no impediment to that issue being determined immediately.
[11] Chief Executive of the Department of Corrections v Wilson, above n 1, at [17]–[18].
It is not clear how this submission can be accommodated within this Court’s appellate jurisdiction. Under s 107R of the Parole Act, an appeal against an extended supervision order is to be treated as though it is an appeal against sentence. This means that the jurisdiction of this Court is limited to considering whether the extended supervision order should have been made or not, and whether the length of the extended supervision order was appropriate. The only remedies available to this Court are dismissing the appeal, or if this Court considers that the extended supervision order should not have been made or should have been made for a different period of time, quashing or varying the extended supervision order (or remitting the case to the High Court with a direction that it quash or vary the extended supervision order).[12] This Court does not have jurisdiction to hear an appeal against a decision not to adjourn an application for an extended supervision order.
[12] Crimes Act 1961, s 385(3).
As mentioned earlier, Mr McKenzie’s principal argument was that the extended supervision order regime restricts the right against double jeopardy in s 26(2) of the Bill of Rights, and therefore the extended supervision order regime should be seen as a “last resort” only to be used where there is no other way to control at risk offenders. He relied on the decision of the Full Court of this Court in Belcher v Chief Executive of the Department of Corrections,[13] which determined that an extended supervision order constituted a form of “punishment” and as such prima facie breached the right contained in s 26(2) of the Bill of Rights. He submitted that in cases such as the present, where other options such as release conditions will be effective alternatives to an extended supervision order to achieve the objective of preventing offending against children, an extended supervision order should not be made until it is truly required. This approach would allow the Courts to affirm and promote the rights contained in the Bill of Rights without compromising the legitimate objective of preventing sexual offending against children.
[13] Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA).
Mr McKenzie also argued that if the Court delayed considering the application the Court would have up to date evidence when considering whether to grant an extended supervision order. For example, the fact that the appellant has been recalled to prison would be relevant to determining whether an extended supervision order was necessary.
When confronted with the limits on this Court’s jurisdiction to hear appeals against extended supervision orders as set out in s 107R, Mr McKenzie sought to frame his argument as being about the proper scope of the legal test used for determining whether to grant an extended supervision order, rather than about whether an adjournment should have been granted. The test for determining whether to make an extended supervision order is set out in s 107I(2). Mr McKenzie invited the Court to read into s 107I(2) a requirement that a Judge consider the effect of an extended supervision order on s 26(2) of the Bill of Rights. He submitted that the impact of making an extended supervision order on the rights affirmed in the Bill of Rights was a mandatory relevant consideration for a Judge in considering whether to make an extended supervision order.
For the Crown, Ms Edwards submitted that it is not necessary to reserve the determination of extended supervision order applications until the last minute to minimise retrospectivity or double jeopardy concerns. The crucial issue is whether the Court considers that it is in a position to make the s 107I(2) evaluation at the time of the hearing. In this case, it was open to Lang J to consider that he was in a position to make the s 107I(2) evaluation, having heard comprehensive evidence from two health assessors.
We accept that the extended supervision order regime must be applied in a manner as consistent as possible with the Bill of Rights. But we do not see that as having any bearing on the timing of the High Court’s dealing with an application for an extended supervision order. Nor do we see it having any bearing on this Court’s jurisdiction to interfere with an extended supervision order on the basis that it was made earlier than it could have been, but is otherwise properly made.
The Parole Act does not prescribe when a Judge must determine an application for an extended supervision order.[14] It does, however, specify when an application for an extended supervision order may be made:
(a)Section 107E places an obligation on the chief executive of the Department of Corrections to ensure that before an eligible offender is released from detention, the offender is assessed to determine the likelihood of committing a relevant offence after release. This provision ties the application for an extended supervision order to the time that the offender is released from detention, not the end of the offender’s release conditions. While not determinative of when the application should be determined, s 107E ties the assessment process to a period prior to the date of release from detention.
(b)Section 107F states that the chief executive of the Department of Corrections may apply for an extended supervision order “at any time” before the later of the offender’s “sentence expiry date” (in this case, 1 September 2015) or the date on which the offender ceases to be subject to release conditions (in this case, 1 March 2016). This provision allows the chief executive to apply “at any time” before the end of release conditions, suggesting that Parliament did not mean for applications to be determined only as release conditions were coming to an end.
[14]In contrast with s 107M(2), which deals with applications for cancellation of an extended supervision order and requires that any such application be set down for hearing as soon as it is received.
The focus of an appeal against a decision to make an extended supervision order is whether the order was rightly made. We do not see any role for an appellate court acting under s 107R of the Parole Act to interfere with the scheduling of the hearing of an application in the relevant trial court. The first ground of appeal therefore fails. However, if the evidence in support of the application at the time of its hearing is insufficient to justify the making of an order, then the order should be quashed on appeal. In other words, the role of this Court on appeal is focussed on the merits rather than the procedure adopted.
If the appellant believes that his risk of reoffending has diminished when the extended supervision order comes into force he can apply to the Parole Board under s 107O(1) for a discharge or variation of the extended supervision order conditions. While, as this Court has previously acknowledged,[15] this does not justify watering down the criteria for the imposition of an extended supervision order, it does address the appellant’s evidential concern. The appellant can also apply to the High Court for the cancellation of the extended supervision order under s 107M in the event that his circumstances change.
Did the High Court have a proper basis for making the order?
[15] R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [14].
We now turn to the merits of the extended supervision order itself.
The essence of Mr McKenzie’s argument for the appellant was that the appellant may well pose a danger of sexual offending against women, but there was not sufficient evidence that there was a real risk of his offending against persons under 16 years of age. The basis of that submission was that the three offences that the appellant had committed against persons under the age of 16 were merely incidental to his offending against adult women, and did not disclose any proclivity for offending against young persons.[16]
[16]In making his submission, Mr McKenzie made it clear that he did not concede that the appellant posed a risk of reoffending against adult women.
Mr McKenzie emphasised that the purpose of an extended supervision order is to protect the community from those who pose a “real and ongoing risk of committing sexual offences against children or young persons”.[17]
[17] Parole Act 2002, s 107I(1).
Mr McKenzie relied on the decision of French J in Connor (aka Clarke) v Chief Executive of the Department of Corrections.[18]In that case French J ordered the cancellation of an extended supervision order in circumstances where the cancellation was not opposed by the Department of Corrections. The reason for this was that the Court was presented with a report that indicated that Mr Connor was no longer likely to commit a sexual offence against a child or young person.
[18] Connor (aka Clarke) v Chief Executive of the Department of Corrections [2012] NZHC 1679.
We do not see the decision in Connor as assisting us in the present case. The decision was an orthodox application of the law to the facts of that case, in which the evidence before the Court, which was not disputed, indicated that the statutory basis for the making of an extended supervision order no longer applied.
Mr McKenzie also cited the decision of Dobson J in Chief Executive of the Department of Corrections v JAJ in support of his argument.[19] That case also provides no assistance to the appellant, because the crucial point there was that the Judge accepted that the offender may not have realised that a particular victim was under the age of 16. His risk was seen to be a risk of offending against physically mature females, which would exclude most females under the age of 16. In the present case, the appellant’s offending, particularly the rape of his wife’s daughter, related to a girl whom he knew to be well below the age of 16.
[19]Chief Executive of the Department of Corrections v JAJ HC Wellington CRI-2009-485-100, 9 November 2009.
Having determined that the authorities relied on by Mr McKenzie are not applicable, we will turn to the arguments put forward by Mr McKenzie on the facts of the present case, which were referenced to the matters that must be addressed by health assessors in their reports to the Court as set out in s 107F(2) of the Parole Act. His submissions, and our analysis of them, using the s 107F(2) matters as headings, follow.
(a)Nature of any likely future sexual offending by the offender including the age and sex of likely victims
Mr McKenzie argued that as most of the appellant’s sexual offending was against adult women he did not demonstrate any particular proclivity towards victims under the age of 16. He accepted that the rape of the young girl described at [8] above was serious offending, but he argued that this and the other less serious offending against young girls was merely incidental to the offending against the rape victim’s mother and other adult women.
The health assessor who appeared in the High Court, Dr Freeman-Brown, dealt with this in her report. She said it was illogical to say that, merely because an offender had committed fewer sexual offences against young females than against adult females, it was unlikely that he would commit offences against young females in the future. The High Court Judge accepted Dr Freeman-Brown’s evidence that the appellant was indiscriminate in his offending and that therefore both adult females and young females would be at risk from him in the future.[20]
[20] At [49].
Mr McKenzie argued that the rape of the young girl to which we have already referred was essentially a punishment of the victim’s mother and should therefore be seen as incidental to the appellant’s offending against the mother. We do not see that as having any bearing on the risk that the appellant poses for future offending against young women.
Mr McKenzie also argued that the appellant would be 70 years of age by the time the 21 year term of imprisonment finishes, whereas he was 37 years of age when he raped the young girl. He argued that the opportunity to offend against the young girl was because she was the daughter of an adult woman with whom the appellant was in a relationship. He said that, at the age of 70, it is unlikely that the appellant will form a relationship with a woman who has a young girl in her care. Again, we do not believe that the appellant’s offending can be categorised so specifically, and that there can be any assurance that the opportunity to offend against young girls will not arise in the immediate future.
In short, we do not accept that the appellant’s offending against young females can be said to be “incidental” to his offending against adult females. Nor do we accept the fact that most of his offending involved adult victims leads to a conclusion that there is no significant risk of offending against young females in the future. We agree with the High Court Judge’s reasons for rejecting both submissions.[21]
(b) The offender’s ability to control his or her sexual impulses
[21] At [59].
Mr McKenzie responsibly accepted that the breadth of the appellant’s offending made it difficult to argue that the appellant had an ability to control his sexual impulses at least at the time of the offending. But he reiterated his argument that the lapse of a period in excess of 20 years since the last of the offences were committed meant that it may be possible that his impulses are now better controlled. However, that is speculation and does not provide any proper basis for concluding that the appellant has developed control of his sexual impulses that he has not hitherto exhibited.
(c) The offender’s predilection and proclivity for sexual offending
There is no doubt that the appellant’s previous offences demonstrate a high predilection and proclivity for sexual offending. Mr McKenzie did not seek to dispute that, but argued that the previous offending was focused on adult females rather than young females and that this meant his proclivity for sexual offending was not directed at young persons. However, the unifying characteristic of the appellant’s victims was that they were vulnerable. Dr Freeman-Brown’s evidence was that the appellant is as likely to target a vulnerable child as he is a vulnerable adult. The High Court Judge accepted that evidence, as do we.[22]
(d) The offender’s acceptance, responsibility and remorse for past offending
[22] At [58] and [59].
The appellant has consistently denied any past offending and, as Mr McKenzie accepted, this was not therefore a factor that could be resolved in his favour. However, he criticised the conclusion of the High Court Judge that the appellant remained at the same level of risk as he presented at the time of his arrest.[23] He again cited the appellant’s age, and the fact that he would not be likely to become involved in a relationship with a woman who had care of young children. We doubt that the Judge intended to say more than the obvious point that the appellant’s refusal to accept his offending or to undertake any treatment meant he had done nothing to lessen the risk of future offending. Ultimately it is irrelevant whether the appellant’s level of risk remains as high now as it did at the time of his offending. What the Court is required to address is whether the offender is likely to commit any relevant offences on ceasing to be an eligible offender.[24] We do not have any doubt that that test is met in this case.
(e) Any other relevant factors
[23] At [72].
[24] Parole Act 2002, s 107I(2).
Mr McKenzie again raised under this heading the lapse of time since the appellant’s last offence, given his very long period of incarceration. We do not see that as, in itself, ameliorating the risk of the commission of relevant offences.
We are satisfied that the High Court Judge was correct to conclude that the appellant was likely to commit relevant offences upon ceasing to be an eligible offender, and that the extended supervision order was therefore correctly made.[25]
Conclusion
[25] At [78] – [80].
This ground of appeal also fails.
Result
The appeal is dismissed.
Solicitors:
SB Law, Christchurch for Appellant
Crown Law Office, Wellington for Respondents
3
3
0