CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v BROADBENT [2020] NZHC 2496 [23 September 2020]

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v BROADBENT [2020] NZHC 2496[23 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000352[2020] NZHC 2496UNDER Section 107FA of the Parole Act 2002BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND JAMES MANUEL BROADBENTRespondentHearing: 22 September 2020Appearances: Brett Tantrum for the ApplicantMark Edgar for the RespondentJudgment: 23 September 2020JUDGMENT OF MOORE J[Application for interim supervision order]This judgment was delivered by me on 23 September 2020 at 4:30 pm.Registrar/ Deputy RegistrarDate:Introduction[1] On 21 August 2020, the Chief Executive of the Department of Corrections("Corrections") applied in this Court for an extended supervision order ("ESO") and,pending its determination, an interim supervision order ("ISO") in relation toMr Broadbent.1[2] Mr Broadbent's release conditions are due to expire on 19 September 2020. Atpresent he is in custody on charges laid in the District Court which are understood toinclude driving charges and charges relating to breach of release conditions.2 He isscheduled to appear at a case review hearing in that Court on 24 September 2020 atwhich time it is expected he will seek a grant of bail.[3] The ISO application is made pursuant to s 107FA of the Parole Act 2002 ("theAct") on the grounds that:(a) an application for an ESO has been made;(b) that application has not been determined; and(c) prior to the final determination of that application, Mr Broadbent'srelease conditions will expire on 19 September 2020.[4] Corrections also seek an intensive monitoring condition be imposed as acondition of the ISO.[5] The application for an ISO is opposed by Mr Broadbent.Is the offender required to be present at the hearing?[6] Mr Broadbent was not present at the hearing. On his behalf, Mr Edgar advisedthat his instructions were that Mr Broadbent did not wish to be present. Despite1 Normally such an application would be made in the sentencing Court which in this case is theDistrict Court. However, because Corrections seek the imposition of an intensive monitoringcondition s107IAB deems the sentencing Court to be the High Court, requiring the application tobe made in this Court.2 Minute of Fitzgerald J dated 15 September 2020.Mr Broadbent's instructions, Mr Tantrum, for Corrections, referred me to s 107G(4).This requires an offender to be present at the hearing of an ESO. The question raisedwas whether such a requirement applies to the hearing of an ISO. I asked counsel tofile a joint post-hearing memorandum on this question and record my gratitude for thehelpful submissions I later received on this issue.[7] Section 107FA of the Act sets out the process and criteria under which an ISOmay be made. It provides:"(2) The sentencing court may, on application by the chief executive, orderthat, until the application for an extended supervision order is finallydetermined, the offender is subject to the supervision conditions specified inthe order."[8] In contrast to s 107G, none of the Act's provisions relating to an ISO provideguidance on how the Court is to conduct such proceedings and how that differs froman ESO. Section 107H governs hearings relating to ESOs. I agree with counsel thatwould necessarily include ISOs. That provision omits any reference to a requirementthat the offender be in attendance. It recognises that it is the ESO which has thegreatest impact on an offender's rights and freedoms. In contrast, an ISO is grantedas a temporary measure for a limited and necessarily abbreviated period. As such, anISO necessarily has a lesser impact on an offender's rights and freedoms. In thepresent case that period will be of the order of between two and three months. I agreewith counsels' submission that, in essence, an ISO is a "stopgap" to ensure that thereis no period before the imposition of an ESO during which the offender may be freeof oversight.[9] There may also be some practical reasons why an offender's presence is notmandatory at in ISO. In introducing the 2014 amendment, which included the ISOprovisions, the then Minister of Corrections, the Hon Peseta Sam Lotu-Iiga noted thatan ISO may be imposed where an overseas offender is subject to a similar ESO in aforeign jurisdiction and is released. Where that person is released and returns toNew Zealand the availability of an ISO would ensure there was an effective publicprotection mechanism in place pending an ESO. In that situation an ISO could bemade in the offender's absence.[10] I agree with counsel that ultimately, s 7 of the Act provides the paramountconsideration; that is the safety of the community. This section, explicitly, takesprecedence even over the right of offenders to be informed about decisions whichaffect them and advised how they may participate in the decision-making process.3[11] Section 107I(1) imports the same consideration relevant to ESO applications.Davison J held in Chief Executive of the Department of Corrections v Martin that:4"The provisions of s 7 and the guiding principles set out therein are relevantand applicable to the Court's consideration of whether to make an interimorder pursuant to s 107FA."[12] In any event, it cannot be said that Mr Broadbent has been completely excludedfrom these proceedings. Both counsel have filed memoranda. The nature of an ISOhearing is necessarily limited. As in the present case, the evidence is often untested.5It is at the ESO hearing that the substantive issues, including the opportunity to testevidence, occurs. Thus, for present purposes, the attendance of Mr Broadbent is moreof a procedural rather than substantive concern.[13] Furthermore, I agree with counsel that where there is an absence of clearlegislative guidance it is within the inherent jurisdiction of this Court to conduct theproceeding as the Court thinks fit, consistent with the interests of justice, includingboth the offender's rights and the necessity to preserve the safety of the community.[14] For these reasons I am satisfied that it was not necessary for Mr Broadbent toattend the hearing. However, this decision is not to be taken as authority for theproposition that an ISO may be made in the offender's absence in every case.Certainly, where an offender wishes to be present at the hearing of an ISO, special andcompelling reasons would normally need to be found before the Court would proceedto hear the application in the offender's absence.3 Parole Act 2002, s 7(2)(b).4 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275 at [12] and [35].5 Chisnall v Chief Executive of the Department of Corrections [2019] NZCA 510 at [21].Background[15] Mr Broadbent is 32 years old. He has an extensive criminal history and hasbeen convicted of the following sexual offences:(a) on three occasions between 2007 to 2009, against a 10-year-old male,forcing his penis into the victim's mouth, putting the victim's fingerinto his anus, masturbating in front of the victim and making himmasturbate, showing the victim pornography;(b) on one occasion in 2013, against an 11-year-old male, touching thevictim's penis and buttocks and kissing the victim's mouth; and(c) on one occasion in 2015, against an 11-year-old male, putting his handsinside the victim's pants and holding his penis.Health assessor report[16] Corrections relies on a health assessment report from Mr Fred Bauer dated20 July 2020. Following Mr Broadbent's unreliable attendance at scheduledinterviews with Mr Bauer, the report was written on the basis of a single 45-minuteinterview and collateral information obtained from his file.[17] In addition to Mr Broadbent's convictions for sexual offending, Mr Bauer alsonotes that he has 13 convictions for physically assaulting the third victim's brothers.Mr Bauer notes the potentially sexual overtones to this offending. One chargeinvolved forcing one brother to watch pornography with him and another related toMr Broadbent hitting and punching the older brother in the testicles on numerousoccasions. Further, in 2019, Mr Broadbent was charged with three counts of unlawfulsexual connection and two of indecent assault against a 12-year-old boy alleged tohave occurred in 2016. Mr Bauer notes that although these were ultimately withdrawn,this was cited as being due to concerns as to how the Court proceedings would affectthe victim's mental health.[18] Mr Bauer considers that Mr Broadbent displays a pattern of sexually violatingboys aged 10-12 years old when he has the opportunity, either through living with thevictims or visiting their homes. His offending reveals a level of grooming andplanning. Mr Bauer emphasises that Mr Broadbent appears to place himself insituations which afford him access to a specific age group range of male victims. Thisincludes offending against his partner's children. Mr Bauer concludes thatMr Broadbent has displayed an intense urge to commit relevant sexual offences whichmanifests itself when a potential victim is present in circumstances whichMr Broadbent either places himself in or finds himself in. Having regard to hisnumerous convictions, Mr Bauer considers that Mr Broadbent has a generallyimpulsive tendency, as observed in his transient lifestyle, behaviour in prison and drugabuse. Mr Bauer points to Mr Broadbent's own childhood abuse as likely contributingto unhealthy sexual patterns in Mr Broadbent's adulthood.[19] In Mr Bauer's opinion, Mr Broadbent's displays of remorse are not credibleand he has no insight into the impact of his offending.[20] Based on clinical assessment tools, Mr Bauer concludes that there is a veryhigh risk that Mr Broadbent will engage in relevant sexual offending within 10 yearsof release. On Mr Bauer's assessment, Mr Broadbent sits at Level IV(b) on theViolence Risk Scale: Sexual Offender version, that is "well above average riskcategory". That is the highest score available for sexual offenders.SubmissionsApplicant submissions[21] The applicant asks that an ISO with special conditions be imposed onMr Broadbent until the ESO application is finally determined.[22] Mr Tantrum, for Corrections, submits that this report shows that Mr Broadbenthas a pervasive pattern of serious sexual offending and that the Court can be satisfiedthere is a high risk that Mr Broadbent will commit a relevant sexual offence in thefuture at least on a provisional basis and that an ISO is appropriate.[23] He submits that intensive monitoring conditions are necessary to ensureMr Broadbent does not engineer or find himself in situations where he is likely toreoffend because he has displayed:(a) an intense urge to commit relevant sexual offences which manifestsitself in situations of victim availability;(b) a proclivity for and some predilection towards serious sexual offending;(c) a diminished self-regulatory capacity both generally and in relation tosexual urges;(d) an extremely poor compliance history with conditions; and(e) elements of opportunism and planning in his offending.[24] In addition to the standard conditions, the following conditions specialconditions are sought:6(a) to be subject to intensive monitoring and to submit to beingaccompanied and monitored, for up to 24 hours a day, by an individualwho has been approved by a person authorised by the Chief Executive,to undertake person-to-person monitoring, for the first 12 months of theESO;(b) to attend and complete an appropriate alcohol and drug counsellingassessment to the satisfaction of a Probation Officer. The specificdetails of the appropriate programme to be determined by a ProbationOfficer;(c) to attend a psychological assessment with a departmental psychologistas directed by a Probation Officer and complete any treatment and/or6 As Mr Tantrum noted in his oral submissions, a number of the additional conditions soughtduplicate the standard conditions in full or in part.counselling as recommended by the assessment to the satisfaction of aProbation Officer;(d) to attend an assessment for a specialist child sex offender programmeas directed by a Probation Officer. To attend and complete anycounselling, treatment or programme as recommended by theassessment as directed by and to the satisfaction of a Probation Officer;(e) not to communicate in any way or associate with or directly orindirectly with the victims of his offending, without the prior writtenapproval of a Probation Officer;(f) not to possess, use or consume alcohol, controlled drugs and/orpsychoactive substance, except controlled drugs prescribed for him bya health professional;(g) to reside at an address approved by a Probation Officer and not moveto any new residential address without the prior written approval of aProbation Officer;(h) to comply with any tenancy agreement or rules issued by the providerof his approved accommodation;(i) not to have contact or otherwise associate with a person under the ageof 16 years, directly or indirectly, unless he has the prior writtenapproval of a Probation Officer, or unless he is under the supervisionand in the presence of an adult approved in writing by a ProbationOfficer;(j) to obtain the written approval of a Probation Officer before starting orchanging his position and/or place of employment (including voluntaryand unpaid work). To notify a Probation Officer if he leaves hisposition of employment;(k) to disclose, at the earliest opportunity, the commencement, resumptionor termination of nay intimate relationship to his probation officer;(l) to submit to electronic monitoring as directed by a Probation Officer inorder to monitor your compliance with any conditions relating to hiswhereabouts;(m) to comply with the requirements of electronic monitoring and provideunimpeded access to his approved residence by a Probation Officerand/or representatives of his approved residence by a Probation Officerand/or representatives of the monitoring company from the purpose ofmaintaining electronic monitoring equipment as directed by aProbation Officer;(n) not to enter or loiter near any school, early childhood education centre,park, library, swimming pool, other recreation facility, church, or otherarea as specified in writing by a Probation Officer, unless he has theprior written approval of a Probation Officer, or unless an adultapproved by a Probation Officer in writing, is present; and(o) to be at his approved address between the hours of 9:00 pm and 6:00 amdaily unless he has the prior written approval of a Probation Officer.Respondent submissions[25] First, I record the Court's gratitude to Mr Edgar, for Mr Broadbent, for filinghis helpful written submissions under such urgency, given the circumstances.Mr Edgar submits that Correction's claim of a "pervasive pattern of serious sexualoffending" does not bear up when the full context of Mr Broadbent's offending historyis considered. The admitted offending covers a period of three years.[26] Mr Edgar also submits that Mr Bauer's report needs to be peer reviewed, or anindependent health assessors report convened. Mr Edgar notes that Mr Broadbenttends to be suspicious of authority figures and thus Mr Bauer's engagement withMr Bauer was consequentially limited. It thus follows that Corrections' suggestionthat Mr Broadbent lacks contrition or insight into the impact of his offending is notaccurate. Mr Broadbent admitted his most recent set of offending without the need fora trial. Further, some of his confusion and denial of the facts of the offending may beexplicable by his drug use at the time.[27] On sentencing, release conditions were set which provided for a rehabilitativeprogramme directed at sexual offending. However, Mr Broadbent's Probation Officerhas not put him in touch with such a programme. Only in the last two weeks has anISO been sought.[28] In the event an ISO is made, Mr Broadbent strongly opposes the imposition ofany prohibition orders/conditions which prevent access to the mobile phone networkor the internet. However, I note that none of the conditions sought include prohibitionsof that sort. Mr Broadbent also strongly opposes Correction's request for theimposition of intensive monitoring conditions including a GPS tracking device.[29] Finally, Mr Edgar advised that he anticipates being instructed by Mr Broadbentto apply for bail on 24 September 2020. Having spoken to officers at the remand prisonit would appear a suitable residence will be available "just outside the wire" atSpringhill Prison. Mr Edgar submits that in the absence of pro-social support and withno access to transport, this address will provide the Court with the necessaryreassurance that any public risk Mr Broadbent might present would be sufficientlymitigated.Law[30] An ISO is a temporary measure intended to cover the situation where, pendingthe determination of an ESO, there would otherwise be a period of no supervision.Before making an ISO the Court must be satisfied (in a provisional way, subject tolater reconsideration on receipt of all evidence), that the statutory criteria for makingan ESO are made out.7 The paramount consideration is the safety of the community,but it must also be recognised that offenders should not be subject to conditions that7 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [16].are more onerous, or endure longer, than is consistent with the safety of thecommunity.8[31] The criteria for making an ESO are set out in s 107I of the Act."(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 thehealth assessor's report as set out in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of serioussexual or violent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in futurecommit a relevant sexual offence:(ii) there is a very high risk that the offender will in futurecommit a relevant violent offence."[32] In examining how much serious sexual offending reflects a pervasive pattern,the Court of Appeal recently pointed to the definition of pervade; that is to spreadthrough or permeate. The Court found that a pattern could fairly be described aspervasive where there have been continued occurrences throughout the offender'sadult life.9 "Serious" here is given its ordinary meaning.10 Seriousness may beidentified with the benefit of hindsight, and in particular with an awareness of anoffender's subsequent conduct.11[33] Section 107IAA(1) sets out the matters of which the Court must be satisfied inassessing whether there is a high risk that the offender will in future commit a relevantsexual offence."(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 relevantsexual offence; and8 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275.9 W v Chief Executive of the Department of Corrections [2019] NZCA 460.10 At [4].11 At [20].(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."Intensive monitoring condition[34] When the Court makes an interim supervision order, it may impose any specialcondition that may be imposed under an ESO including an intensive monitoringcondition.12 The Court must specify the maximum term of the intensive monitoringcondition, being no longer than 12 months. Such an order may not be made more thanonce in respect of the same offender.13 When an intensive monitoring condition isimposed under an ISO, this will not count towards the maximum term.14 Indetermining whether a restriction is justified or not, the inquiry should be fact-specific.There must be a nexus between the perceived risk and the effectiveness of the proposedcondition.15Discussion[35] I may only base my decision on the limited material before me. That all butentirely consists of Mr Bauer's report. I am conscious this is untested, and I note witha concern shared by Fitzgerald J, the Criminal List Judge, that Corrections gaveMr Broadbent limited notice before seeking an ESO, despite Mr Bauer's reportapparently being available in July.1612 Parole Act 2002, ss 107FA(3) and 107IAB.13 Section 1071AC.14 Section 107FA(4).15 Chief Executive of the Department of Corrections v Martin [2016] NZHC 275.16 See [8] and [9] of Minute of 15 September 2020. This conduct by Corrections is not isolated. ThisCourt has observed on previous occasions that the late filing of ESOs required the Court to hearapplications on an urgent basis when the need to that urgency was entirely avoidable. This hascaused considerable inconvenience to the Court and the parties. Corrections know when a prisoneris scheduled to be released. They know the release conditions. There is no excuse for not puttingin place the steps necessary well before release.[36] However, having regard to the contents of the report, I consider that there arestrong and compelling grounds which support the making of an ESO. In light of theprinciple that the safety of the community is the paramount consideration, I amsatisfied that an ISO should be made. Mr Broadbent is assessed at the highest availablelevel of risk of reoffending without close supervision. For that reason I am satisfiedthat the intensive monitoring condition is necessary.[37] I also note that the ISO is only likely to be in place for a relatively short periodbefore the ESO is determined. As to the list of specific proposed conditions, I amsatisfied they are necessary for the following reasons:(a) Condition (a) is necessary because Mr Broadbent poses a high risk ofreoffending and it is likely that this risk cannot be managed safely withconstant supervision.(b) Conditions (b) and (f) are necessary because Mr Broadbent has issueswith substance abuse and has used alcohol and drugs as part of hisoffending.(c) Conditions (c) and (d) are necessary to ensure Mr Broadbent receivestargeted and structured treatment.(d) Condition (e) is necessary to protect any of the victims of his offending.(e) Conditions (g) and (h) are necessary to provide oversight of his livingsituation, (j) of his employment and (k) of his relationships. Given thefactual context of his past offending, these conditions have a clearnexus to his risk of reoffending.(f) Conditions (i) (l), (m), (n) and (o) are necessary to provide effectiveoversight of his movements, and to prevent Mr Broadbent coming intocontact with any young males, to reduce his risk of reoffending.Result[38] I order that an ISO is to issue in respect of Mr Broadbent, with standardconditions and the special conditions set out at [24].[39] That being the case, it is necessary to allocate a fixture at the earliest possibledate to hear the substantive ESO. I note that Mr Edgar has indicated he will likelyengage a health assessor for the purposes of the substantive application. He has beengranted legal aid for that purpose. He has approached a potential assessor but has notbeen able to confirm availability. Experience suggests that in these circumstances it isunlikely a fixture within three months will be possible. That is because Mr Edgar willneed to confirm and instruct the assessor. Time will be needed for the assessor to meetwith Mr Broadbent, probably on more than one occasion. Others may also need to beinterviewed. The report will then be prepared and disclosed to Corrections for thepurpose of further briefing Mr Bauer. I direct the ESO is to be heard on Thursday,10 December 2020. A full day is allocated. In the event that date may later proveunworkable, counsel are directed to bring that matter to the attention of the CriminalList Judge forthwith.Moore JSolicitors:Crown Solicitor, AucklandMr Edgar, Auckland