MCLENNAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZCA 629 [26 November 2021]

MCLENNAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZCA 629[26 November 2021]NOTE: PUBLICATION OF THE NAMES OR IDENTIFYINGPARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THECRIMINAL JUSTICE ACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA370/2021[2021] NZCA 629BETWEEN BRENT DARRYL MCLENNANAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 9 November 2021Court: Brown, Mallon and Moore JJCounsel: R G R Eagles for AppellantB Hawes and A M Harvey for RespondentJudgment: 26 November 2021 at 10.30 amJUDGMENT OF THE COURTA The application for leave to adduce updating evidence is declined.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] Brent McLennan is subject to an extended supervision order (ESO) for a periodof five years, beginning from when the order was granted in the District Court on 21May 2021.1 Mr McLennan appeals, contending that the five-year period should havebeen imposed from the date of his release from prison in 2019 or a shorter term shouldhave been imposed. He says that the agreed expert evidence that a five-year term wasappropriate was predicated on it commencing from his release date. The Judgewrongly relied on the recent and unexpected death of his partner as a factor increasinghis risk of reoffending in determining that the five-year term should commence fromthe date of her decision. Mr McLennan also seeks leave to adduce a new psychologistreport as updating evidence.Offending history[2] Mr McLennan was sentenced to 14 years' imprisonment in 2007 for sexualoffending against two victims, both strangers to Mr McLennan, to which he hadpleaded guilty.2[3] The first attack occurred in December 2004. The victim was walking home inthe early hours of the morning after an evening out socialising. Mr McLennan grabbedher around the neck, threatened to kill her if she screamed, forced her into a secludedbush area and told her to lie on the ground. He digitally penetrated her vagina and heranus. He then anally raped her with his penis and then with an object thought to be astick. He then forced the victim to perform oral sex on him. At one point,Mr McLennan asked if she was enjoying it. When she said that she was not, he toldher to "shut up and say you like it and want more". The victim pleaded withMr McLennan to let her go. When the assault finally stopped, he told her he wouldkill her if she went to the police. He ran off with her phone and passport.[4] The second attack occurred in April 2005. The victim was also walking homein the early hours of the morning after an evening out socialising. Mr McLennan drovepast the victim several times. He then appeared from behind a fence, grabbed her,pulled her into an empty section and threatened her. The victim began to scream butMr McLennan grabbed her around the throat and said he would kill her if she did notcooperate or if she went to the police. He punched her stomach and threw her onto1 Department of Corrections v McLennan [2020] NZDC 9633.2 R v McLennan DC Invercargill CRI-2005-025-3051, 14 March 2007.the ground. He penetrated her vagina and anus with his fingers and fondled herbreasts. He rubbed his penis on her anus, used lubricant and inserted a device (called"love balls") into her anus, causing her immense pain. He asked her whether she wasenjoying it and why she was not. He removed the love balls and inserted his penisinto her anus, then put a beanie over her face, turned her onto her back and raped her,and kissed and sucked her breasts. When he finished, he asked her for her handbag soshe could not call the police. The victim told him she did not have a phone and thenhe ran off.[5] Mr McLennan has no previous convictions for sexual offending. He has alimited and dated history of other offending. It includes male assaults female andaggravated careless driving (under influence) causing injury.The ESO applicationBackground[6] Mr McLennan was released from prison on 18 September 2019, four daysbefore his statutory release date. In anticipation of his release, he had been assessedby Julie Batley, a registered clinical psychologist employed by the Department ofCorrections. She concluded there was a high risk that Mr McLennan would engage inrelevant sexual offending within ten years of release and then analysed the extent towhich he presented the relevant characteristics set out in s 107IAA(1) of the ParoleAct 2002. The Chief Executive of the Department of Corrections applied for an ESOon 7 November 2019. An application for an interim supervision order was made on12 November 2019. The latter was not opposed and was put in place 11 December2019.Mr Lascelles' report[7] Mr McLennan's counsel instructed Nick Lascelles, a clinical psychologist inprivate practice, to prepare a report. This report, dated 20 April 2020, discussedMr McLennan's background. By this time, Mr McLennan was married to the womanwith whom he had a child 25 years earlier. Mr McLennan said that they had met andentered into a relationship in 1993 but separated after nine months. They reunitedfollowing their daughter tracking him down. Mr McLennan said their marriage was"for life". His wife was positive about their relationship.[8] Mr Lascelles discussed Mr McLennan's previous offending. This included thecareless driving causing injury conviction. Mr McLennan explained that he had justseparated from his then partner and felt angry and had gone out drinking. He fellasleep in his car and was woken by a woman knocking on the door and asking for aride home. There was a discussion about her "availability" but she said she had aboyfriend at home. He dropped her off but felt "a bit used". He told Mr Lascelles that"something just clicked in [his] head" and he drove up and down the road she waswalking on, crossed the centre line and struck her. Mr Lascelles said this appeared tobe an act of retribution for her declining his advances. He viewed as "very significant"the degree of anger generated from Mr McLennan feeling sexually slighted.[9] The report also discussed the circumstances of the first and second attacks.Leading up to the first attack, Mr McLennan had separated from a relationship(although he had been seeing other women concurrently during that relationship).On the night of the offence he had been drinking homebrew spirits and feeling "angrytoward women". Leading up to the second attack, Mr McLennan was in anotherrelationship that was "going fine" (although with some infidelity) but he was angryand frustrated about his financial situation. On the night of the offence his girlfriendwas away attending a course and he had again been drinking homebrew spirits. Herecalled thinking his first attack was "unsuccessful" and had been thinking about"getting it right". He felt "powerful" and wanted to get his "rocks off". Mr McLennandescribed "feel[ing] really bad" about destroying their lives and never wanting to dosuch a thing again. He acknowledged it had taken a long time for him to be able toadmit to what he had done.[10] Mr Lascelles assessed Mr McLennan as being at a moderate to high risk offurther serious sexual offending during the next ten years. This range of risk wasbecause of "significant uncertainty" about two matters. The first was the degree towhich his apparent progress made in his third (and finally successful) attendance atthe Adult Sex Offender Treatment Programme would be maintained in the communityand over the longer term. The second was the stability of his current relationship. Thiswas likely to be a significant protective factor if it persisted "in a healthy manner, butongoing conflict or an acrimonious end to the relationship would potentially rapidlyincrease acute risk for Mr McLennan". Mr Lascelles explained:This is due to a substantial part of his offence pathway involving perceivingothers (especially women) as harming or slighting him, and feeling motivatedto gain retribution or regain power and control through offending.[11] According to Mr Lascelles, Mr McLennan had progressed from denial andminimisation to ultimately successful participation in treatment. He considered theresumption of Mr McLennan's relationship with his now wife in 2017 appeared to bea turning point. Since his release, he had engaged well with supervision, married andobtained temporary full-time work. Mr Lascelles considered the stability ofMr McLennan's relationship with his wife was a "critical" element of his future risklevel and that, if he perceived himself to be poorly treated by his wife, his "acute riskwill be raised markedly".[12] Mr Lascelles declined to opine on an appropriate length of an ESO if imposed,but suggested it would be informed by a period of years in the community whereMr McLennan would have the opportunity to demonstrate a successful reduction inrisk due to his treatment.Ms Batley's updated reports[13] Following Mr Lascelles' report, Ms Batley was to carry out a furtherassessment. Mr McLennan was uncooperative because he felt Ms Batley's earlierreport had led to an ESO being pursued. Ms Batley therefore prepared her updatedreport, dated 10 August 2020, based on a review of the file and consultation withMr McLennan's probation officer.[14] Ms Batley's view was that Mr McLennan remained at a high risk of sexuallyoffending within ten years of his release. Any such offending was "likely to occur inthe context of perceived rejection and/or wrongdoing by a female towards [him]". Sheconsidered he was overly reliant on his support people (his wife and daughter) andthere was limited evidence of his ability to independently mitigate his risk or managehis reintegration needs. His ability to "manage marital discord" or "cope with theending of a significant relationship" was untested. She was also of the view thatMr McLennan was dismissive towards his need for oversight, constantly challengingit, but was nevertheless focussed on compliance.[15] The ESO application came before the Court on 28 August 2020. It wasadjourned part-heard to enable Ms Batley to interview Mr McLennan. Ms Batleyproduced an updated report dated 8 October 2020 after having the opportunity to dothat. In her view the evidence suggested that Mr McLennan might have developedmore independence "in the practical aspects of his reintegration and [might] thereforebe slightly less reliant on his wife's support in this respect". However, she remainedof the view that Mr McLennan was at a high risk of future relevant sexual offending.She considered it remained "unclear whether he could self-regulate and independentlymitigate his risk of reoffending". In her opinion he was likely to have limitedself-regulatory capacity in circumstances associated with his previous sexualoffending.Joint view[16] Following Ms Batley's updated report, she and Mr Lascelles convened. Theyprepared a joint memorandum to the Court dated 23 October 2020. In thismemorandum they set out their agreement that each of the ESO criteria found ins 107IAA(1) of the Parole Act was strongly supported by historical information. Theyalso said that they shared a "concern about what may develop if Mr McLennanexperiences circumstances similar to that of his index offending. Specifically, if hiscurrent relationship breaks down". They did not have a joint view on the appropriatelength of an ESO.[17] Following this memorandum, counsel for Mr McLennan advised the Court thatit was now accepted that an ESO should be made and the only issue was its duration.The Chief Executive's application was for an ESO of 10 years. Mr Lascelles, in theOctober joint memorandum, considered a five-year period would be sufficient and theCrown could apply for an extension if his risk was considered to remain high at thattime. Following a teleconference on 30 October 2020, the Judge sought furtherinformation from Ms Batley and Mr Lascelles regarding the length of the proposedESO and relevant conditions.[18] They prepared a joint memorandum to the Court dated 26 November 2020.This addressed proposed conditions. Ms Batley prepared a separate memorandum ofthe same date addressing the length of the ESO. She said she agreed that "a term offive years from when Mr McLennan was released from prison appears reasonable".This would enable his risks to be regularly assessed over the period and guide howreliable his apparent risk stability was and "[s]pecifically, how he may manage his riskin circumstances similar to that of his index offending and/or during any relationshipinstability".District Court[19] The adjourned hearing was eventually reconvened on 6 May 2021. Sadly, inthe meantime, on 25 February 2021 Mr McLennan's wife died unexpectedly from acardiac arrest. Mr McLennan's affidavit to the Court advised that this was a "terribleshock" that had left him very upset. He had requested counselling through theProbation Service and had seen and intended to continue to see a psychologist to helphim with his grief. The affidavit also stated he was living with his daughter and herchild, with whom he wished to maintain a close relationship, and he had part-timeemployment. His counsel advised the Court that Mr McLennan was, however, shortlyto be living by himself as his daughter wished to live independently.[20] Counsel for McLennan contended the term of the ESO should be four years.The Judge rejected this. She considered "a term of five years as proposed by theexperts is required".3 She was "particularly persuaded" by the shared concern ofMs Batley and Mr Lascelles "of consequences to risk in circumstances [where]Mr McLennan no longer has the support of his wife".4 The Judge referred toMs Batley's comments in her 8 October 2020 report that Mr McLennan had "limitedself-regulatory capacity" and his ability to navigate challenges following his release3 Department of Corrections v McLennan, above n 1, at [40].4 At [40].from prison remained untested "over an extended period of time and/or when keyemotional support and stable accommodation is not available".5[21] The Judge said:[42] At that point of course, Mr McLennan still had the unconditionalsupport of his wife. His circumstances since release until her death werestable. Her death is in my view significant because she was a key emotionalsupport for Mr McLennan and her death has resulted in a period of relativeinstability for him. His main support person has gone and while he still hasthe support of his daughter he will soon be living on his own.[43] Given these factors not enough time has passed since the death ofMr McLennan's wife for me to be satisfied he can continue to make progresswithout her positive influence. The consistent theme in all reports is theheightened risk if his relationship breaks down. That once unknown factor isnow a reality. The consequences to risk remain high and I must err on the sideof caution in assessing the term of the ESO to ensure the statutory purpose isachieved.[44] Ultimately my evaluative assessment when I balance all the materialI have before me about Mr McLennan's personal circumstances now is thatoversight for a period of four years or as Ms Batley put it five years fromrelease is just not enough to manage the high risk Mr McLennan poses to thecommunity of committing a relevant sexual offence in the future given thesignificant changes in his life in 2021. Oversight remains necessary and inmy assessment five years is the minimum period required.[22] The Judge determined that the ESO was to be for five years, commencing fromthe date of the judgment.The appealUpdating evidence[23] Mr McLennan sought to adduce further evidence in support of his appeal.The proposed evidence was an affidavit from David Riley, a psychologist with over40 years' experience with Corrections, including 10 years as Director of Corrections'psychological service. Mr Riley had interviewed Mr McLennan around eight yearsago when he was prison (when he maintained his innocence) and Mr McLennan hadcontacted him some years later (to say he now accepted his offending).5 At [41].[24] The intended purpose of the affidavit was to update the Court onMr McLennan's progress since the death of his wife. The affidavit went further thanthis. He disagreed with the assessment of risk made by Mr Lascelles and Ms Batley.He also expressed the view that some consideration should be given to shortening thelength of the five-year ESO.[25] To the extent that the affidavit goes beyond updating information, it is notfresh. It is potentially only relevant to relief if we formed the view that the Judge, onthe evidence before her, had erred in setting the five-year term to commence from thedate of her decision rather than the date of release. For reasons that we now come to,we consider that she did not err. We therefore decline leave to adduce the affidavit.Commencement date[26] The submission for Mr McLennan is that the Judge effectively added anadditional 20 months to the term of the ESO that the experts agreed was appropriate.His counsel says that this was done without an evidential basis because the expertswere concerned about a breakdown in Mr McLennan's relationship with his wife.It could not be assumed that the death of his wife was an equivalent risk factor.The psychologists were not asked to give their view about this. Mr McLennan'saffidavit was the only evidence before the Court about his wife's death and it indicatedthat he was coping quite well.[27] The statutory regime requires that an ESO application be accompanied by ahealth assessor's report that addresses specified questions related to the criteria forimposing an ESO.6 Those questions do not include the term of an ESO having regardto the person's risks. However, in Moeke v Chief Executive of the Department ofCorrections, this Court suggested that the health assessor's report include a section"that addresses fully the minimum term sought for the particular offender against thes 107I(5) criteria".7 That criteria is the minimum period required for the purposes ofthe safety of the community in light of the level of risk posed by the offender, theseriousness of the harm that might be caused to victims, and the likely duration of the6 Parole Act 2002, s 107F(2) and (2A).7 Moeke v Chief Executive of the Department of Corrections [2010] NZCA 60 at [29(a)].risk. While the assessment of risk in a health assessor's report will inform the decision,it is well established that the making of an ESO "is a judicial decision and not that ofthe health assessor".8[28] There must of course be a proper basis for the view the Court reaches. Here,we consider there was. We accept that the reports were focussed on Mr McLennan'srisk if his relationship with his wife broke down. Feelings of rejection were regardedas elevating his risk. However, both psychologists were clear that his wife was astabilising influence on him. Ms Batley was concerned that his ability toindependently manage his risk was untested, the Judge specifically referring to thisconcern.9 While Mr Lascelles' comments were more focussed on Mr McLennan's riskif he was in an acrimonious relationship, the fact that his wife had died meant that heno longer had, as described in Mr Lascelles report, the protective factor of a stablerelationship.10[29] We consider it was open to the Judge to form the conclusion she did in light ofthe information before her. As this Court said in Poutawa v Chief Executive of theDepartment of Corrections, the appropriate length of an ESO involves the exercise ofa broad discretion.11 This limits the appropriate scope of appellate review. The Courtwent on to say that the desirability of light-handed appellate control over the length ofESOs was reinforced by the opportunity a person subject to one has to seek acancellation of the ESO or variation of conditions.12 The affidavit from the veryexperienced Mr Riley may support such an application here.8 Peta v R [2007] NZCA 28 at [7], citing Grieve v Chief Executive of the Department of Corrections(2005) 22 CRNZ 20 (CA) at [15] and Barr v Chief Executive of the Department of CorrectionsCA60/06, 20 November 2006 at [32]. See also McDonnell v Chief Executive of the Departmentof Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [46].9 Department of Corrections, above n 1, at [41].10 See [10] above.11 Poutawa v Chief Executive of the Department of Corrections [2007] NZCA 206 at [10].12 At [14], citing ss 107M and 107O o the Parole Act.Result[30] The application for leave to adduce updating evidence is declined.[31] The appeal is dismissed.Solicitors:Eagles, Eagles & Redpath, Invercargill for AppellantCrown Solicitor, Christchurch for Respondent