CORRECTIONS v LOCHORE [2021] NZHC 839

CORRECTIONS v LOCHORE [2021] NZHC 839 [20 April 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000156[2021] NZHC 839BETWEEN THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND DOMINIC JABEZ LOCHORERespondentHearing: 23 February 2021Appearances: C J Boshier for the ApplicantA J Bailey for the RespondentJudgment: 20 April 2021JUDGMENT OF NATION J[1] The Chief Executive of the Department of Corrections (the Chief Executive)applied, pursuant to s 107F of the Parole Act 2002 (the Act), for an extendedsupervision order (ESO) as to the respondent (Mr Lochore) for a period of 10 years.Mr Lochore was released from a term of imprisonment on 30 December 2020. Hisrelease conditions end on 1 July 2021. He is currently on an interim supervision orderpursuant to s 107FA which has remained in place pending this judgment.[2] There is no dispute that Mr Lochore is an "eligible offender" as defined in s107C. On 17 October 2018, he was sentenced to two years and six months'imprisonment on a charge of indecently assaulting a female under 12 years of age.1That conviction was for a "relevant sexual offence" as defined in s 107B(2).1 R v Lochore [2018] NZHC 2693.[3] The purpose of an ESO and the grounds required for the court to make an ESOare set out in ss 107I(1) and 107I(2) of the Act:107I Sentencing court may make extended supervision order(1) The purpose of an extended supervision order is to protect members ofthe community from those who, following receipt of a determinatesentence, pose a real and ongoing risk of committing serious sexual orviolent offences.(2) A sentencing court may make an extended supervision order if,following the hearing of an application made under section 107F, thecourt is satisfied, having considered the matters addressed in the healthassessor's report as set out in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of serious sexualor violent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in future commit arelevant sexual offence:(ii) there is a very high risk that the offender will in future commita relevant violent offence.[4] Every ESO must state the term of the order, which may not exceed 10 years.2[5] Under s 107I(5) of the Act:(5) The term of the order must be the minimum period required for thepurposes of the safety of the community in light of—(a) the level of risk posed by the offender; and(b) the seriousness of the harm that might be caused to victims; and(c) the likely duration of the risk.[6] As counsel for the Chief Executive helpfully pointed out in her submissions,the Court of Appeal brought together the principles in relation to ESO's in the recentcase of Kiddell v Chief Executive of the Department of Corrections.3 No issue wastaken with her summary of those points. I have had regard to them in this judgment.2 Parole Act 2002, s 107I(4).3 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171.[7] One of the points made by the Court of Appeal in Kiddell was that the term"serious sexual offending" in s 107I(2)(a) should be given its ordinary meaning ratherthan being treated as a term of art.4 It is not confined to relevant sexual offences in s107B(2).5 The term "serious" should also be given its ordinary meaning, viewedagainst the purpose of the ESO regime to protect the community from those who posea real and ongoing risk of sexual offending.6[8] Relevantly, in assessing whether there is a high risk of an eligible offendercommitting a relevant sexual offence and whether they exhibit certain risk-relatedtraits or behavioural characteristics, the court is guided by the factors set out in s107IAA(1):107IAA Matters court must be satisfied of when assessing risk(1) A court may determine that there is a high risk that an eligible offenderwill commit a relevant sexual offence only if it is satisfied that theoffender—(a) displays an intense drive, desire, or urge to commit a relevant sexualoffence; 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 for pastoffending:(ii) an absence of understanding for or concern about the impact ofhis or her sexual offending on actual or potential victims.[9] The terms "pervasive pattern", "serious sexual offending" and "high risk"indicate this assessment requires judgments of quality and degree.7 The decision-making exercise is of a fact-specific and evaluative nature.84 At [22].5 Kiddell v Chief Executive of the Department of Corrections, above n 3, at [22] citing Holland vChief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1 NZLR 771 at [13]-[14].6 Kiddell v Chief Executive of the Department of Corrections, above n 3, at [22].7 At [21].8 At [21].[10] The court must be "satisfied" the criteria in ss 107I(2) and 107IAA of the Acthave been established.9 There is no onus or standard of proof, rather the court mustmake a judicial decision on the evidence.10[11] An ESO engages rights which are protected under the New Zealand Bill ofRights Act 1990 (NZBORA). When deciding whether to make an ESO and, if so, forhow long, courts must recognise the ESO may impinge substantially upon theoffender's freedom of movement and association.11Assessment as to whether offender has had a pervasive pattern of serious sexualoffending[12] Mr Lochore is aged 31.[13] In 2007, Mr Lochore sexually offended against a young male known to him.The first incident involved him masturbating and performing oral sex on the victim.Mr Lochore also instructed the victim to masturbate him, which he did. The secondincident involved Mr Lochore masturbating the victim and coercing the victim tomasturbate him. Mr Lochore also rubbed his erect penis against the victim's lowerback. The first offence occurred in April 2007 when Mr Lochore was 17 and the victimwas nine. The second occurred in November 2007.[14] Consistent with information Mr Lochore provided for a New Zealand ParoleBoard hearing, he told Ms Beach, the psychologist who provided the HealthAssessment report, that he had offended against his initial victim on a further fouroccasions between the two incidents for which he was charged and convicted.[15] Mr Lochore was sentenced to imprisonment for the charged offending for oneyear and nine months. He was subsequently placed on an ESO which was extendedto July 2015.9 At [25].10 Kiddell v Chief Executive of the Department of Corrections, above n 3, at [25] citing Holland vChief Executive of the Department of Corrections [2016] NZCA 504 at [12].11 Kiddell, above n 3, at [27] citing Holland v Chief Executive of the Department of Corrections,above n 10, at [45].[16] In May 2016, 10 months after the end of Mr Lochore's ESO, Mr Lochorearranged for the father of an eight year old female to live at Mr Lochore's mother'shome. Mr Lochore also stayed at that home from time to time. In August 2016, hehad the eight year old female lie with him on a couch and watch TV. He twice rubbedher genitals under her underwear. This was the index offending for which he wassentenced to two years and six months' imprisonment.Demonstration of intense drive, desire or urge to commit a relevant sexual offence[17] Ms Beach noted Mr Lochore's previous partners had reported to Police overthe six year period preceding the index offending that Mr Lohore had attempted tohave them enact sexual contact between adults and children and had suggested theyhave sexual contact with their children. An ESO was in place for most of that period.Ms Beach concluded that Mr Lochore displayed an intense drive, desire or urge tocommit a relevant sexual offence, that is sexual offending with young people. Shenoted, during the first half of his recent period of treatment, Mr Lohore reported havingdifficulty managing his deviant arousal. Her report provided specific information asto this. It also noted his coercion of the male victim and his later enticement of thefemale victim of the index offending into a particular situation where he was able tooffend against her. He told Ms Beach he knew he was inappropriately transgressingboundaries but was unable to prevent himself from repeating his rubbing of thevictim's genitals. Mr Lochore had helped the father of the young victim and her sistermove into his mother's home where he also was living. In doing so, he orchestrated asituation where he was able to offend against that victim, despite advice givenpreviously through probation and during treatment that he needed to avoid closecontact with children.The offender's predilection or proclivity for serious sexual offending[18] Mr Lochore told the psychologist he fantasised about adult versus child sexualcontact prior to his offending. He told her that normal sex with an adult was no longerarousing for him and his sexual preference was for 12 year old females. The indexoffending occurred 13 months after he had been under an ESO.[19] Consistent with the information in the psychologist's report, I am satisfied MrLochore's acknowledged preference is for females aged approximately 12 years, thathe has a high degree of sexual preoccupation and is attracted sexually to youngerchildren. The circumstances of his offending associated with grooming andmanipulation/intimidation of the victims indicates, as the psychologist concluded, hisdesire to engage in sexual activity with pre-pubescent victims was enduring and highlymotivating.The offender's self-regulatory capacity[20] The circumstances of his offending, the information as to the way he spoke toformer partners of his interest in a sexual involvement with children and his offendingin circumstances where there was a high risk of detection demonstrate he lacks theability or desire to generally regulate his behaviour to follow social expectations andnorms, and to inhibit him from further serious sexual offending with children.The offender's acceptance of responsibility and remorse for past offending[21] The psychologist said, in her discussions with Mr Lochore, he becametentative, unsure and confused when asked about empathy and remorse. She alsonoted he displayed distress when reflecting on adverse experiences that had affectedhim but did not display such distress in relation to his victims. She said, to his credit,Mr Lochore was open about the extent of his manipulation of past probation officers,victims, partners, previous treating psychologists and his current treating psychologist.There was information that, when participating in the Kia Marama special treatmentprogramme, Mr Lochore dominated sessions in a manner that prevented other groupmembers from giving him critical feedback, limiting the level of genuine self-disclosure he engaged in.The offender's understanding for or concern about the impact of his or her sexualoffending on actual or potential victims[22] The psychologist reported Mr Lochore (to his credit) had been open about thefact he did not consider the effects of the offending upon the victims before, during orafter the offending. He reported he does not experience empathy for his offending orwhen he sees others in emotional or physical pain. When describing the possibleimpact of his sexual offending upon his victims, he spoke in generalised, vague terms,stating he was generally referencing his own abuse. It was the psychologist's viewthat he has little true understanding or concern about the impact of his sexual offendingon actual or potential victims.[23] At the hearing of this application, there was no evidence from Mr Lochore orfrom any psychologist engaged by him to challenge the information provided by thepsychologist or her opinions which I have just set out.[24] I am well satisfied Mr Lochore has had a pervasive pattern of serious sexualoffending.Assessment as to whether there is a high risk that offender will commit a relevantsexual offence[25] To make Mr Lochore subject to an ESO I must also be satisfied there is a highrisk he will in future commit a relevant sexual offence.[26] The psychologist concluded that, based on a multi-method assessment of MrLochore's risk of further relevant offending using three different ratings, there is a highrisk of him committing a further relevant sexual offence while in the community. Heranalysis of static and dynamic risk factors, along with specific information related tohis offence pattern, led her to conclude "there is a high (Well Above Average) [sic]risk that Mr Lochore will engage in relevant sexual offending within ten years ofrelease". She considered the reoffending was likely to take the form of sexualoffending against a pre-pubescent child of either gender. Ms Beach suggested it islikely to involve sexualised touching, oral sex and masturbation committed upon thevictim and requests for oral or manual masturbation of Mr Lochore.[27] The psychologist's conclusion was not challenged through any evidence calledfor Mr Lochore but the basis for her opinion was tested through detailed cross-examination of her as to various actuarial instruments for measuring risk which shehad used in reaching that conclusion. One was the STATIC-99R 10 item measurewhich assessed static risk factors empirically identified "as being predictive of sexualrecidivism". Application of that instrument indicated Mr Lochore was highly likelyto reoffend sexually placing him in the "Well Above Average" category.[28] Application of the VRS:SO12 instrument assesses the probability of sexualreoffending on both static and dynamic risk predictors. The psychologist considered,applying that instrument, Mr Lochore was at high risk of sexual recidivism (within the"Well Above Average" risk category). Deviance, anti-sociality and barriers to gainingfrom treatment all contributed significantly to his risk for future offending.[29] The Psychopathy Checklist–Screening Version was a measure designed to bea psychological assessment screen for the presence of criminal psychopathicpersonality and associated antisocial traits in forensic and criminal populations.Application of that measurement suggested Mr Lochore was at greater risk of furtheroffending than the average for New Zealand offenders. His scores on that test alsoindicated a higher probability of committing serious reoffending within five years ofrelease into the community.[30] Mr Lochore's counsel submitted this Court should exercise caution in relyingon the measurement of risk applying those instruments. In particular, he had thepsychologist acknowledge those instruments are not designed to assess the risk ofpurely relevant sexual offending, as that term is used in the Parole Act.13 Instead, theydetermine an offender's risk of committing any sexual offending. The risk ofreoffending these tools produce could, for instance, include accessing child sexualexploitation material on the internet which would not come within the definition ofrelevant sexual offending in connection with an ESO. The psychologist alsoacknowledged to Mr Bailey that, at some point, Mr Lochore's level of risk had beenassessed using the ASRS-R measurement. Ms Beach notes this measurement wasintended by Corrections as a screening instrument for Corrections to work out whichtreatment programme people should go into, rather than as a full standalone riskassessment. In 2018, application of that measurement indicated Mr Lochore had amoderate/high score. Mr Bailey suggested that application of the ASRS-R instrumentshould also be considered carefully because it assessed the level of risk against an12 Violence Risk Scale-Sexual Offence version.13 Parole Act 2002, s 107B.entirely New Zealand-based sample of the population, in contrast to the VRS:SOwhich was primarily based on a Canadian population.[31] Mr Bailey also had the psychologist acknowledge the potential for the risk ofreoffending to be reduced through participation in the Kia Marama programme whichMr Lochore had completed. He suggested it would have been of assistance for thisCourt to know what percentage of offenders who had participated in that programmehad reoffended within 10 years and noted this Court had not been provided with thatinformation.[32] I bear in mind the points Mr Bailey made through cross-examination andbriefly in his concluding submissions but my assessment as to whether there is a highrisk Mr Lochore will in future commit a relevant sexual offence has to be based on allthe information before this Court and not just on the scores arrived at on an applicationof the various measurement tools referred to in the psychologist's report or the ASRS-R instrument used earlier.[33] Importantly, that was also the way the psychologist made her assessment. Inher report, she said that "[d]uring the current health assessment, actuarial instrumentsand noted clinical risk factors14 were evaluated to establish the risk that Mr Lochorewould commit further relevant sexual offences while in the community". Althoughthe psychologist referred to various measurement instruments, she did not rely on thescores achieved on any one such measurement. While the psychologist acknowledgedthe various measurement instruments had not been devised or manipulated to establishthe risk of an offender committing a relevant sexual offence, she said she, and othersusing these tools, look at the offending pathway. This involves looking at what theperson has done and what they are likely to do based on their past actions. She saidthis is how they decide what sort of offending the person is likely to carry out in thefuture. She said, while the measurements are used to assess the likelihood ofoffending, it is the information from past offending which is used to predict what kindof offending is likely.14 Emphasis added.[34] The psychologist further articulated the need "to use a static measure, adynamic measure, a change measure and then to use your clinical judgement aboutother factors" when making an assessment. I accept that is what she did in reachingher overall conclusion that, with Mr Lochore, there is a high risk he will be involvedin further relevant sexual offending, as that term is used in s 107I(2)(b)(i) of the Act.15[35] There was also an implied suggestion through cross-examination that thepsychologist, as with others who have to prepare reports, has a bias towards expressingsuch a conclusion because that is what the legislation required her to advise on.[36] Section 107F(2A)(a)(ii) requires a health assessor's report to address whether"there is a high risk that the offender will in future commit a relevant sexual offence".Although that is what the legislation requires of the medical assessor providing ahealth assessor's report, I do not accept the psychologist, providing a report to thecourt as an expert, would be inclined to express an opinion in absolute terms simplybecause that would be consistent with the wording of the legislation. It was MsBeach's evidence that, on occasions, she had qualified her opinion of risk in herreports.[37] Under cross-examination, the psychologist also accepted that successfulengagement in the Kia Marama programme at prison could reduce the risk of futureserious sexual offending but explained how Mr Lochore's behaviour in group sessionsreduced the benefits he could otherwise have obtained from his involvement in thatprogramme. That behaviour led to him being provided with individual sessions.[38] In considering the potential for protective factors to have reduced the risk offuture offending, the psychologist acknowledged that Mr Lochore had engaged in atreatment programme and had an intellectual understanding of his offending process.But, Ms Beach also said he had been reluctant to acknowledge his attraction to pre-pubescent children, reluctant to engage in release planning which would adequatelyassist him to manage his risk and had been unable to change important inter-personaldynamics that parallel his offending.15 See Parole Act, 2 107B for the meaning of relevant sexual offence.[39] Mr Lochore was sentenced for the current index offending in the High Courton 17 October 2018. The Judge had to consider a possible preventive detentionsentence and had the benefit of reports from both a psychologist and psychiatrist. Withthe benefit of the detailed information in those reports, Mallon J considered MrLochore could be dealt with by way of a finite sentence. Relevant to her decision wasthe possibility that an ESO application could be made at the end of that prisonsentence. Her Honour recommended to the Department of Corrections that it considermaking an application for an ESO which could then be put in place on Mr Lochore'srelease from his prison sentence. She considered an ESO would contain a number ofimportant protections for the community after Mr Lochore's release.[40] I am satisfied, on all the information put before me, that there is a high risk MrLochore will in future commit a relevant sexual offence.The exercise of discretion and the duration of an ESO[41] The court has a discretion as to whether to make such an ESO but it has notbeen suggested that I should decline to make an ESO in the exercise of my discretion.I am satisfied the making of an ESO is necessary to protect people, particularly youngchildren or pre-pubescent teenagers, from the risk of further relevant sexual offendingagainst them by Mr Lochore.[42] Corrections suggest the ESO should be for the maximum possible period of 10years because the risk Mr Lochore poses to the community is likely to remain for asignificant period of time. They suggest that research indicates the risk of individualswith Mr Lochore's assessed risk level remains stable over an extended period of time.They also note that this Court may cancel the ESO at any time during the term of theorder where an offender is believed to be no longer likely to commit a relevantoffence.16[43] Counsel pointed out that the fact Mr Lochore was subject to an ESO for aperiod of five years previously did not prevent him from committing the indexoffending soon after the expiry of that ESO.16 Section 107M.[44] Mr Bailey for Mr Lochore submitted, if an ESO had to be made, it should befor a period less than 10 years. He suggested there is a trend in recent cases for thecourt to make ESO's for periods less than 10 years. He said there is evidence that MrLochore has worked hard at participating in a treatment programme and he needs tohave an incentive to continue that so any risk he poses can be reduced to a level whereit is less than high. He referred to Mr Lochore's relatively young age. Through hissubmissions and cross-examination generally, he reminded this Court of how themaking of an ESO significantly impinges on an individual's rights under theNZBORA.[45] There was information from the psychologist that, despite issues with the wayMr Lochore participated in the Kia Marama programme, he had made some effort toparticipate appropriately so he could benefit from the programme.[46] Following his engagement in individual counselling, the psychologist said MrLochore appeared to be trying to acknowledge and manage his behaviour and this hadresulted in fewer angry outbursts, although he continued to engage in behaviourswhich made it difficult for both him and others to benefit from the feedback of othersin group sessions. She noted however that he was able to increasingly acknowledgethe fact he was attracted to pre-pubescent children and he completed elements of theprogramme devoted to the development of relationship skills and a safety plan. MsBeach said he was able to identify relevant high risk situations and warning signs thathe was at risk of future sexual offending but there was uncertainty as to whether hewould adhere to that plan while in the community. The psychologist also referred toaspects of his personality which leave him at risk for future sexual offending. Sheconsidered those behaviours were linked to enduring personality traits that not onlywere likely to increase the risk of sexual offending but were also likely to precludehim to having an open and respectful relationship with probation and other supportagencies available to help him in the community.[47] Those views were consistent with the information in health reports provided tothe High Court when Mr Lochore was sentenced for the index offending in October2018.[48] In discussing the results of a VRS:SO risk assessment, the psychologist notedthat Mr Lochore's scores indicated he had made changes in a number of relevant areasbut said these changes were "considered to be fragile and untested in the community".[49] The information before me indicates, through participation in the Kia Maramaprogramme while serving his sentence for the index offending, Mr Lochore madesome progress in addressing significant areas of his personality and thinking that causehim to be at a high risk of further relevant sexual offending. He needs to continuewith that work to reduce his level of risk. If he does not, it is likely Corrections willhave to seek a further ESO.[50] I consider Mr Lochore will have a greater incentive to continue with this workif he can work towards a date less than 10 years distant when he knows there will bea full assessment as to the further progress he might have made and how he has beenable to regulate his behaviour away from the prison environment. I consider it is inMr Lochore's interests and in the interests of the community that he have that greaterincentive rather than have the horizon set at 10 years but with the ability for him toseek a review of that period at some uncertain time in the future when he mightconsider he has made the necessary progress. I consider the ESO should be for aperiod of five years.Conclusion[51] I accordingly make an order that an extended supervision order for a period offive years be imposed on the respondent.Solicitors:Crown Solicitor, ChristchurchA J Bailey, Barrister, Christchurch.