CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v ALINIZI [2016] NZCA 468

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v ALINIZI [2016] NZCA 468 [28 September 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA414/2016[2016] NZCA 468BETWEEN CHIEF EXECUTIVE, DEPARTMENTOF CORRECTIONSAppellantAND ALI ALINIZIRespondentHearing: 19 September 2016Court: Harrison, Brown and Brewer JJCounsel: C A Brook for AppellantP H H Tomlinson for RespondentJudgment: 28 September 2016 at 3.00 pmJUDGMENT OF THE COURTA The appeal is allowed.B An extended supervision order is made against Mr Alinizi for a period ofsix years commencing on 29 September 2016.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The purpose of an extended supervision order (ESO) is to protect members ofthe community from those who, following release from serving a determinate prisonsentence, pose a real and ongoing risk of committing serious sexual or violentoffences.1 Under s 107I(2) of the Parole Act 2002, the Court may grant an ESO ifsatisfied that the offender has, or has had, a pervasive pattern of serious sexual orviolent offending and either or both of the following apply:(i) there is a high risk that the offender will in future commit a relevantsexual offence;(ii) there is a very high risk that the offender will in future commit arelevant violent offence.[2] This appeal concerns the meaning of the word "displays" where it firstappears in s 107IAA of the Parole Act. That section specifies the prerequisites for adetermination of the level of risk sufficient to justify the making of an ESO:107IAA Matters court must be satisfied of when assessing risk(1) A court may determine that there is a high risk that an eligibleoffender will commit a relevant sexual offence only if it is satisfiedthat the offender—(a) displays an intense drive, desire, or urge to commit arelevant 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:(i) a lack of acceptance of responsibility or remorse forpast offending:(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.(2) A court may determine that there is a very high risk that an eligibleoffender will commit a relevant violent offence only if it is satisfiedthat the offender—(a) has a severe disturbance in behavioural functioningestablished by evidence of each of the followingcharacteristics:(i) intense drive, desires, or urges to commit acts ofviolence; and(ii) extreme aggressive volatility; and1 Parole Act 2002, s 107I.(iii) persistent harbouring of vengeful intentions towards1 or more other persons; and(b) either—(i) displays behavioural evidence of clear and long-termplanning of serious violent offences to meet apremeditated goal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern aboutthe impact of his or her violence on actual or potentialvictims.Factual background[3] In 2006 Mr Alinizi was found guilty of sexual violation by rape andkidnapping of a 15 year old female and was sentenced to eight years' imprisonment.While he was in prison, offending against a previous partner's nine year old daughtercame to light. Consequently in 2013 Mr Alinizi was convicted of two charges ofdoing an indecent act on a child and he was sentenced to two years' imprisonment tobe served cumulatively with the earlier sentence.[4] Mr Alinizi was released on parole on 18 January 2016 with a statutory releasedate of 30 March 2016. The Parole Board imposed post-release conditions thatexpire six months after his statutory release date, which is on 29 September 2016.The Chief Executive of the Department of Corrections (the Chief Executive) appliedfor an extended supervision order on 13 November 2015 in anticipation ofMr Alinizi's imminent release from prison.High Court judgment[5] On 25 July 2016 Gilbert J dismissed the Chief Executive's application,2reasoning that the Court has no jurisdiction to make an ESO unless satisfied thateach of the four matters in s 107IAA(1) exists at the time an order is made. He heldthat Mr Alinizi did not currently display an intense drive, desire or urge to commit arelevant sexual offence with the consequence that the first of the statutoryprerequisites for an ESO was not met.2 Chief Executive, Department of Corrections v Alinizi [2016] NZHC 1693.[6] The Judge commenced by noting that Parliament has used different tensesand terminology in defining the statutory test to be applied when determiningwhether an extended supervision order can be made,3 observing that those importantdifferences had to be respected in considering whether there was jurisdiction to makean ESO in a particular case.[7] The Judge proceeded to distinguish a number of authorities cited by the ChiefExecutive in support of the application,4 before expressing agreement with thefollowing observations of Wylie J in Chief Executive, Department of Corrections vMartin:5[37] Pursuant to s 107IAA(1)(a), I am required to be satisfied thatMr Martin "displays an intense drive, desire or urge to commit a relevantsexual offence".[38] The sub-section uses the present tense — "displays". What isrequired is an assessment as at the date of the hearing for the extendedsupervision order, informed by what has occurred in the past, in anendeavour to anticipate what might happen in the future. The statutorylanguage — "intense drive, desire or urge" — is strong. It conveys a senseof immediacy. What is in issue is whether or not the offender displays anintense drive, desire or urge as at the date of the hearing, and not what drive,desire or urge he or she displayed in the past.[8] Turning to address the question whether Mr Alinizi "presently displays" thecharacteristics in s 107IAA(1)(a), the Judge observed that Dr Juanita Smith, aclinical psychologist retained by the Chief Executive:6(a) concluded in her initial report that Mr Alinizi "does not present" withthe first characteristic; and(b) said nothing in her updated report about Mr Alinizi's currentpresentation but confined her observation to the time of Mr Alinizi'soffending 11 years earlier in 2005.3 "Has had"; "has"; and "displays".4 Chief Executive of the Department of Corrections v CJW [2016] NZHC 1082; Chief Executive ofthe Department of Corrections v Rimene [2015] NZHC 2721; and Chief Executive of theDepartment of Corrections v Wrigley [2015] NZHC 1712.5 Chief Executive, Department of Corrections v Martin [2016] NZHC 1060 (footnotes omitted).6 Chief Executive, Department of Corrections v Alinizi, above n 2, at [26].He noted that Dr Smith confirmed in cross-examination that there was no evidencethat Mr Alinizi currently displayed that characteristic.[9] Dr Jon Nuth, another clinical psychologist retained by Mr Tomlinson forMr Alinizi, provided a report dated 26 April 2016 which stated he was unable toascertain whether Mr Alinizi had the particular characteristic. He confirmed this inevidence.[10] The Judge concluded:[35] It can be seen that there is no contest in the evidence. Bothpsychologists agree that Mr Alinizi does not currently display an intensedrive, desire or urge to commit a relevant sexual offence. There is noevidence that he has done so since he offended in 2005. It follows that oneof the statutory pre-requisites for an extended supervision order is not met.Accordingly, the Court has no jurisdiction to make an extended supervisionorder and the application must be dismissed.The statutory framework[11] The rationale for the imposition of an ESO is that an offender who has serveda prison sentence for a relevant offence may nevertheless present a high risk ofcommitting a relevant sexual or violent offence following his or her release. TheESO is tailored to the identified risk by the requirement that the term of the ESOmust be the minimum period required for the purposes of the safety of thecommunity in light of the level of risk posed by the offender and the likely durationof the risk.7[12] The ESO regime was significantly changed by the Parole (ExtendedSupervision Orders) Amendment Act 2014 which broadened the scope to include allsexual offenders regardless of their victims' ages as well as serious violent offenders.Provision was introduced for the renewal,8 cancellation9 and review10 of ESOs.[13] In its original form s 107F of the Parole Act simply required, in order toimpose an ESO, that the Court be satisfied that the offender was "likely" to commit a7 Parole Act, s 107I(5)(a) and (c).8 Section 107F(1)(b).9 Section 107M.10 Section 107RA.relevant offence on ceasing to be subject to a sentence of imprisonment. Under thenew framework once it is established that an offender is an "eligible offender" theCourt is required to engage in a three-step process:(a) the Court must determine whether the offender has, or has had, apervasive pattern of serious sexual or violent offending;(b) the Court must make specific findings as to whether the offendermeets the qualifying criteria set out in s 107IAA; and(c) if those criteria are met the Court must make a determination aboutthe risk of the offender committing a relevant sexual or violentoffence.[14] Section 107IAA is concerned with the specified traits and behaviouralcharacteristics of an offender at the date of a relevant application before the Court. Itapplies both to a first application for an ESO under s 107F and to a renewalapplication. It is also applicable both on an application to cancel an ESO11 and on areview of an ESO.12[15] An application for an ESO must be accompanied by a report by a healthassessor which responds to the requirements set out in s 107F(2A):Every health assessor's report must address one or both of the followingquestions:(a) whether—(i) the offender displays each of the traits and behaviouralcharacteristics specified in section 107IAA(1); and(ii) there is a high risk that the offender will in future commit arelevant sexual offence:(b) whether—(i) the offender displays each of the behavioural characteristicsspecified in section 107IAA(2); and11 Parole Act, s 107M(4).12 Section 107RA(6).(ii) there is a very high risk that the offender will in futurecommit a relevant violent offence.[16] Section 107F proceeds to address the matters which the health assessor maytake into account:(3) To avoid doubt, in addressing any matter to be referred to in thehealth assessor's report, the health assessor may take into accountany statement of the offender or any other person concerning anyconduct of the offender, whether or not that conduct constitutes anoffence and whether or not the offender has been charged with, orconvicted of, an offence in respect of that conduct.[17] The breadth of information which the Court may take into account inconsidering an application for, or for the cancellation of, an ESO is stated in s 107H:(2) At hearing, the court may receive and take into account any evidenceor information that it thinks fit for the purpose of determining theapplication or appeal, whether or not it would be admissible in acourt of law.(3) At any hearing, the court is entitled to take into account the fact thatan offender refused to co-operate with the preparation of the healthassessor's report required under section 107F(2), but it must alsotake into account any reasons the offender gives for refusal toco-operate with the preparation of the health assessor's report.Analysis[18] The Chief Executive does not challenge the requirement that an offendermust possess the prescribed traits and characteristics at the time when the ESOapplication is determined. Rather the contention is that it is not a requirement of theprovision that at the date of determination the trait or characteristic must be"presently manifest". The Chief Executive's argument is reflected in the adoption ofthe observation of Venning J in Chief Executive of the Department of Corrections vCJW:13[33] The urge or drive need not be presently manifested. The issue iswhether Mr W still has the characteristic, rather than the circumstances inwhich it might apply. 13 Chief Executive of the Department of Corrections v CJW, above n 4.[35] I am satisfied that there is evidence that Mr W has an intense driveor urge to commit violent assaults against others. Whether that urge or driveis unleashed will depend on the situations that Mr W finds himself in.[19] Gilbert J distinguished CJW for the reason that it concerned an applicationfor an ESO based on the risk that the offender would commit serious violent offencesin the future, stating:14[18] The test in those circumstances is set out in s 107IAA(2) and isdifferent to the test based on the risk of sexual offending set out ins 107IAA(1). There is no requirement under subsection (2) for the offenderto "display" an intense drive, desire or urge to commit acts of violence.Gilbert J similarly distinguished Chief Executive of the Department of Corrections vWrigley noting that Heath J omitted the word "displays" when reciting the criterionunder s 107IAA(1)(a) and did not address it in his analysis.[20] We recognise that the use of the transitive verb "display" in association withan object commonly conveys external manifestation, generally to the public at large.Hence there is statutory provision concerning:(a) the conspicuous display of notices on danger buildings;15(b) the prohibition on display of certain types of advertisements;16(c) the prohibition on certain types of display of the New Zealand Flag andState emblems;17 and(d) the offence of displaying anything likely to be taken for a road usercharges licence.18[21] However the meaning of a word will depend on the context of its usage. Weconsider that where a "display" refers not to an inanimate object the subject of public14 Chief Executive, Department of Corrections v Alinizi, above n 2, at [18].15 Hazardous Substances and New Organisms Act 1996, s 245(1).16 Human Rights Act 1993, s 67(1).17 Flags, Emblems and Names Act 1981, ss 11(1)(b), 12(1) and 13(1).18 Road User Charges Act 2012, s 24(1).view but to aspects of a person's personality traits and behavioural characteristics theword necessarily connotes a subtly different shade of meaning.[22] The first point we would make is that the general public is unlikely to be therelevant audience of such a "display". As the proposed criteria in a RegulatoryImpact Statement which preceded the Parole (Extended Supervision Orders)Amendment Act stated:19A psychological assessment of the offenders would be necessary todetermine whether they have the characteristics that identify a person asbeing at a high risk of serious sexual offending or very high risk of seriousviolent offending. This will include a comprehensive risk assessment.That observation is reflected in the requirement in s 107F(2A) that the s 107IAAprerequisites are to be addressed in the health assessor's report.[23] Of course even such suitably qualified health assessors are dependent onavailable information. Sometimes information pertinent to those prerequisites willbe available where an offender elects to provide information as s 107F(3)contemplates by the reference to statements of the offender. However suchinformation will not be available if the offender elects not to co-operate. Such aneventuality is anticipated by s 107H(3) which provides that the Court is entitled totake into account the fact that an offender refused to co-operate with the preparationof the report required under s 107F(2).[24] The ability for the Court to proceed in that manner is especially important ina situation where, as Gilbert J noted,20 both psychologists agreed that there iscurrently no reliable test that can be administered to determine whether at aparticular time someone possesses an intense drive, desire or urge to commit arelevant sexual offence. The Judge acknowledged that in those circumstancespsychologists rely on self-reporting or subsequent behaviour to ascertain whetherthat criterion is satisfied. Unless the word "displays" is given a wider meaning itwould have no utility for an offender such as Mr Alinizi who denies his offendingand is most unlikely to self-report and who has been living for a number of years in a19 Department of Corrections Regulatory Impact Statement: Enhanced Extended SupervisionOrders (3 November 2014) at 20.20 At [28].closed environment where he had no opportunity to display an intense drive, desireor urge to commit a sexual offence against a female or a child. Hence, absentself-reporting or the commission of further offending, the consequence of the Judge'sinterpretation of the "displays" requirement might well be that the object ofprotection of the community would be defeated.[25] While we agree with Gilbert J that the use of the present tense is significant,we do not consider that the use of different verbs ("displays" and "has") in relationto the several characteristics listed in s 107IAA(1) and (2) is significant. We notethat in s 107F(2A) concerning the content of the health assessor's report, which isintended to address the s 107IAA requirements, the word "displays" is used withreference to all of the traits and behavioural characteristics of the offender specifiedin the subsections.[26] We consider that the word "displays", particularly in the more generic usagein s 107F(2A), is intended to convey that the relevant traits and behaviouralcharacteristics must be currently possessed by the offender. However we do notconsider that the word "displays" used in the ESO context imports the connotation ofexternal expression associated with manifestation to the public at large. We considerthat a similar approach may be appropriate for the word "exhibits" in s 13(2) of thePublic Safety (Public Protection Orders) Act 2014, which legislation is addressed ins 107GAA of the Act.[27] Consequently we agree with Ms Brook's submission for the Chief Executivethat the variable usage of "displays" in the sections does not import a requirementthat the particular traits and behavioural characteristics, while required to be"present", must be externally manifested at the time of application.[28] Were it otherwise the task of proving those requirements could be renderedquite impossible in circumstances where as s 107F(3) anticipates the source ofevidence may rely on self-reporting. An offender who elects not to engage either inwhole or in relevant part with the assessment process could with comparative easeensure that an application was unsuccessful. That point can usefully bedemonstrated by considering the requirement to demonstrate an externalmanifestation of the negative states of mind in s 107IAA(1)(d) of a lack ofacceptance of responsibility for past offending or an absence of understanding for orconcern about the impact of offending on victims.The present ESO application[29] As Ms Brook notes, while in some cases offenders do in fact self-report, forobvious reasons many do not. Indeed some will deny ever having the characteristicin the first place, as in cases where an offender continues to deny the offendingoccurred. In such instances Ms Brook suggests there is an available inference thatthe offender still has the characteristic in question. The present is said to be such acase.[30] In that regard we note that in Dr Smith's initial health assessment report of29 July 2015 Mr Alinizi denied any role in or responsibility for his sexual offencesand consequently reported limited detail about them.[31] The report included:[17] Mr Alinizi has not completed treatment to address his dynamic riskof sexual or violent offending. Due to his categorical denial of his sexualoffending, Mr Alinizi has been found unsuitable for sexual offendertreatment programmes and he has been unwilling to undertake treatment todiscuss sexual offending .The report also noted that Mr Alinizi maintained that the sexual offence allegationswere falsely made against him by the victims and their families to exact revenge onhim and as a result he does not verbalise remorse. In fact he was noted to blame hisvictims and make statements to discredit them.[32] In an updated report of 20 June 2016 Dr Smith recorded that Mr Alinizicontinued to deny his sexual offending which impacted on his ability to discuss andengage in effective risk management. Dr Smith considered that Mr Alinizi's risk offurther relevant sexual reoffending while in the community remained high.[33] In the High Court21 Gilbert J analysed a section of Dr Smith's updated report,noting that with reference to the first mandatory criterion Dr Smith had confinedobservation to the time of the 2005 offending and said nothing about Mr Alinizi'scurrent presentation which the Judge recognised as the critical issue under the ParoleAct. However Dr Smith in her report went on to say:Nonetheless, Mr Alinizi's failure to engage in treatment, despiteacknowledging problems with alcohol and drug use and high levels ofsexually compulsive and anti-social behaviour at the time of the offending,suggests that he is, at least, not willing to recognise and manage his sexualrecidivism risk in the community.[34] Dr Nuth's report also recorded that Mr Alinizi denied that any of the sexualoffences for which he was convicted ever took place and that he maintained that hewas wrongly accused and convicted. Because Mr Alinizi denied ever committing asexual offence his scores on the Child Molest Scale and Rape Scale could not becalculated. Specifically with reference to the first prerequisite Dr Nuth stated:[38] I am unable to ascertain whether Mr Alinizi has an intense drive,desire, or urge to commit the relevant sexual offence. Mr Alinizi denies anysexual offending and consequently has not taken part in any sexual offendingtreatment whilst in prison. He denies any prominent sexual interest but thisis in contrast to high levels of sexual activities when he was in his lateteens/early twenties. I do however concur with the view of Dr Smith whostated: Mr Alinizi's failure to engage in treatment or develop riskmanagement plans, despite acknowledging problems with alcohol and druguse and high levels of sexually compulsive and anti-social behaviour at thetime of the offending, suggests that he is at least not willing to recognise ormanage his sexual recidivism risk on release.[35] Dr Nuth was of the view based on all the information available to him thatthere was a basis for recommending an ESO. It was his belief that Mr Alinizipresented "at least a moderate to high level of sexual offending risk and a number ofon-going dynamic risk factors that do not appear to have attenuated".[36] In our view the general approach adopted in CJW, Wrigley and ChiefExecutive of the Department of Corrections v Rimene is sound and we consider that aCourt is likely to be satisfied that the statutory prerequisite in s107IAA(1)(a) ispresent where there is nothing to suggest that such a trait formerly present no longersubsists. A court will very likely come to such a conclusion where, as here, an21 At [25].offender categorically denies the sexual offending for which he was convicted and asa consequence has been unwilling to undertake treatment to discuss sexualoffending.[37] As Ms Brook emphasised in the context of her criticism of the judgment intreating the health assessors' evidence as being determinative of the issue, thequestion of whether an offender meets the criteria for the imposition of an ESO is forthe Court, not the health assessors, to determine although their expert opinion will nodoubt be of assistance. In the present case we are satisfied on the basis of the threepsychologists' reports and Mr Alinizi's history of offending that the several statutoryprerequisites in s 107IAA(1) continue to be present. We conclude that it isappropriate and necessary for an ESO to be made in relation to Mr Alinizi.Term of order[38] Because of his conclusion that the first prerequisite was not established,Gilbert J did not address the issue of an appropriate term of an ESO againstMr Alinizi. We must now do so. As earlier noted22 the term of the ESO must be theminimum period required for the purposes of the safety of the community in light ofthe matters stated in s 107I(5) of the Parole Act. Where an offender categoricallydenies previous offending and consequently is unwilling to undertake treatmentdirected to the sexual offending, it would be open to a Court to direct an ESO of thefull 10 year period.[39] We have carefully considered the alternative courses of making an order of10 years duration, recognising that it is open to Mr Alinizi to apply at an earlier timefor cancellation, or an order of lesser duration in relation to which the ChiefExecutive could make an application for extension at the appropriate time.[40] We have concluded that the latter course is appropriate in view of Dr Nuth'sprofessional opinion that a maximum period of 10 years is not necessarily indicated.In our view a period of six years should provide an adequate opportunity for thedevelopment of a safety plan with protective factors which would safeguard the22 At [11] above.community as well as providing a sufficient time for Mr Alinizi's behaviour in thecommunity to be monitored and assessed. It would be open to the Chief Executiveto apply to extend the order towards the end of that period in the event that thepresent circumstances, including Mr Alinizi's categorical denial of his sexualoffending, pertain.Disposition[41] The appeal is allowed. An extended supervision order is made againstMr Alinizi for a period of six years commencing on 29 September 2016.Solicitors:Crown Law Office, Wellington for Appellant