CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CLEMENTS [2021] NZHC 1383

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CLEMENTS [2021] NZHC 1383 [11June 2021]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S203 OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-11[2021] NZHC 1383UNDER the Parole Act 2002IN THE MATTER of an application for an ExtendedSupervision Order and Intensive MonitoringBETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND REUBEN JOHN CLEMENTSRespondentHearing: 27 May 2021Appearances: P A Currie for ApplicantT R Nicholls for RespondentRespondent in person (by AVL from Rimutaka Prison)Judgment: 11 June 2021[REDACTED] JUDGMENT OF OSBORNE J[Reasons judgment]This judgment contains redaction of personal or sensitive information.This judgment was delivered by me on 11 June 2021 at 3.30 pmRegistrar/Deputy RegistrarDate:[1] After hearing from counsel on 27 May 2021 in relation to the application ofthe Chief Executive of the Department of Corrections for an extended supervisionorder (ESO) and an intensive monitoring condition, I granted the following orders:(a) in relation to Reuben John Clements an extended supervision order fora term of 10 years commencing on 26 December 2020; and(b) an intensive monitoring condition attached to this extended supervisionorder until the first anniversary of Mr Clements' sentence release date.[2] I made the orders having considered:(a) the reports of Katrina Falconer Beach (18 February 2020 and 17November 2020), a registered clinical psychologist; and(b) the report of Dr Clare Brindley (18 September 2020), also a registeredclinical psychologist (as well as a forensic psychologist andneuropsychologist).Mr Clements' background[3] Mr Clements is 46 years old having been born on 27 October 1974. He wasfirst convicted for sexual offending in 1993 when 18 years of age. The healthassessment report states that this (prolonged) offending occurred against[REDACTED] when Mr Clements was [REDACTED]. It involved a range of sexualbehaviour. Since then Mr Clements has accumulated a further seven convictions forsexual offending, with sentencings occurring in 1996, 2017 and 2018. Five of theconvictions have been for relevant sexual offences.1 Mr Clements has received a rangeof sanctions for these offences, ranging from an initial supervisory sentence (of 16months, in 1993) through to two years and six months imprisonment (2018).[4] Mr Clements' 2018 conviction was for possessing objectionable publications,knowingly distributing objectionable publications, and failing to comply with1 "Relevant sexual offence" having the meaning defined in Parole Act 2002, s 107B(2).reporting obligations. The summary of facts pertaining to these offences identifiesthat offending occurred through messages on Mr Clements' cell phone. In some ofthese conversations, Mr Clements described himself as a 9-year-old female child,asking for objectionable material to be sent to him. Mr Clements also distributedobjectionable material (being child exploitation videos) on five separate occasions.Objectionable material was also found on the cell phone, predominantly involvingfemale children and young persons.[5] In June 2020, Mr Clements was released from prison, subject to releaseconditions, and ultimately transferred to a facility on prison land on 21 July 2020. On4 August 2020, he was found (in breach of his release conditions) in possession of adevice capable of storing images and accessing the internet. He had been messagingchildren in a sexually explicit manner, requesting and receiving images of genitaliafrom a 15-year old victim, and sending images and videos of his genitalia.The application[6] An ESO, for a term of 10 years, was previously made in the District Courtunder the Parole Act 2002 (the Act) on 24 November 2020, and ordered to take effectfrom 26 December 2020. The standard conditions applied. Further interim specialconditions were imposed on 15 December 2020.[7] The Chief Executive then applied to this Court for an ESO pursuant to s 107Fof the Act, together with an order requiring the Parole Board to impose (unders 107IAC of the Act) intensive monitoring on Mr Clements.[8] Under s 107IAB of the Act, it is only the High Court which may impose anintensive monitoring condition — hence the application to this Court. Having regardto the fact that the District Court had already made an ESO, the rationale of the presentapplication is that Mr Clements requires intensive monitoring in addition to beingsubject to an ESO.[9] For his part, Mr Clements, having initially opposed the several aspects of theapplication, no longer opposes the making of the orders sought by the Chief Executive.The statutory regime[10] Applications for an ESO are provided for under s 107F of the Act, whichrelevantly provides:107F Chief executive may apply for extended supervision order(1) The chief executive may apply to the sentencing court for an extendedsupervision order in respect of an eligible offender,—(a) where the offender is subject to a sentence of imprisonment,at any time before the later of—(i) the sentence expiry date of the sentence to which theoffender is subject that has the latest sentence expirydate, regardless of whether that sentence is for arelevant offence; and(ii) the date on which the offender ceases to be subject toany release conditions; or(b) where the offender is subject to an extended supervisionorder, at any time before the expiry of the order; or(2) An application under this section must be accompanied by a report by ahealth assessor (as defined in section 4 of the Sentencing Act 2002).[11] I must be satisfied of the following matters set out in s 107I of the Act beforeI make an ESO:107I Sentencing court may make extended supervision order(1) The purpose of an extended supervision order is to protect membersof the community from those who, following receipt of a determinatesentence, pose a real and ongoing risk of committing serious sexualor violent 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 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.(Emphasis added)[12] Here, I must be satisfied that, having considered the matters addressed in thehealth assessors' reports, Mr Clements:(a) has, or has had, a pervasive pattern of serious sexual offending; and(b) there is a high risk that he will in future commit a relevant sexualoffence.[13] A Court may only be satisfied there is a high risk of Mr Clements' committinga relevant sexual offence if it is satisfied that he meets the mandatory criteria ins 107IAA of the Act, which relevantly provides: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 relevantsexual 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 for pastoffending:(ii) an absence of understanding for or concern about the impactof his or her sexual offending on actual or potential victims.[14] Section 107IAB provides for the imposition of an intensive monitoringcondition (attaching to an ESO) by application of this Court:107IAB Chief executive may apply for imposition of intensivemonitoring condition(1) When the chief executive makes an application under section 107Ffor an extended supervision order, he or she may at the same timeapply to the sentencing court for an order requiring the Board toimpose an intensive monitoring condition on the offender undersection 107IAC.(2) If the chief executive makes an application under this section, thesentencing court is, for the purpose of that application and thecorresponding application under section 107F, and despite anything insection 107D, taken to be the High Court.[15] There is no statutory test regarding the imposition of an intensive monitoringcondition. Such a condition will be imposed only where the risk is considered to bevery high and where offenders are considered to need external controls to mitigate thatrisk.2 Its special value may be viewed as asserting external control at a transitionalpoint of high risk.3Standard conditions[16] Under s 107J(1)(a) of the Act, standard conditions apply to all ESOs.4Eligibility[17] Mr Clements qualifies as an eligible offender under s 107C of the Act. He wassubject to a determinate sentence of imprisonment for relevant offences as defined ins 107B. The sentence has not been quashed or otherwise set aside. Mr Clements hasnot ceased to be subject to release conditions or an ESO since his last conviction.A pervasive pattern of serious sexual offending (s 107I(2)(a))[18] Ms Currie, for the Chief Executive, submitted that a pervasive pattern ofserious sexual offending by Mr Clements has been demonstrated by the number ofvictims and his repeated offending. A review of Mr Clements' history of previousconvictions reveals a pattern of serious sexual offending. I accept, as the Crown2 Chief Executive of Department of Corrections v Paul [2017] NZHC 1294 at [39].3 Chief Executive of Department of Corrections v Paniora [2018] NZHC 1505 at [46].4 The standard extended supervision conditions are set out in Parole Act, s 107JA.submits, that this conduct alone is sufficiently pervasive to serve as a predictor offuture behaviour.[19] Mr Clements' offending has spanned 30 years of his life. Successive sentencesof imprisonment imposed from 1996 have not had any apparent deterrent effect uponhim. He has a history of swiftly reoffending after release from prison and while onrelease conditions.High risk of a future relevant sexual offence (s 107I(2)(b)(i))Demonstration of intense drive, desire or urge to commit a relevant sexual offence(s 107IAA(1)(a))[20] Mr Clements has engaged from his adolescence through to middle-age insexual offending against children involving both physical contact and non-contact. InMs Falconer Beach's opinion, this offending has varied according to the availabilityof potential victims and reflects a high degree of sexual preoccupation andcompulsivity. Ms Falconer Beach notes that Mr Clements, while incarcerated,continued to have recurrent fantasies of children, while masturbating. He has notachieved an adult-focused sexual fantasy script. His offending has continued despitetreatment for means of managing his deviant sexual impulses. Ms Falconer Beachobserves that Mr Clements was more constructively engaged in recent treatmentprogrammes but, despite this, she concludes that his urge to offend is likely tooverwhelm this initial skill development. She highlights the fact that Mr Clementshas no appropriate support to assist in challenging situations. In both her reports, MsFalconer Beach concludes that Mr Clements displayed signs of an intense drive, anda desire and urge to commit a relevant sexual offence.Predilection or proclivity for serious sexual offending (s 107IAA(1)(b))[21] Ms Falconer Beach notes that Mr Clements' sexual activity has beenpredominantly with prepubescent victims despite his having same-age or adult sexualpartners. Mr Clements told Ms Falconer Beach that secondary sexual characteristicswere not (sexually) attractive to him. He acknowledged that he spent most of his freetime attempting to contact under-age females online or viewing objectionable images.Ms Falconer Beach's second report highlights further behaviour of Mr Clements thatindicates his sexual preference for people in the prepubescent age group. Ms FalconerBeach instances Mr Clements' conversation with a 15-year old female,[REDACTED], and [REDACTED]. In both reports, Ms Falconer Beach opines thatMr Clements has a predilection and proclivity for serious sexual offending.The offender's self-regulatory capacity (s 107IAA(1)(c))[22] Ms Falconer Beach posits that Mr Clements has demonstrated a pattern ofrepeatedly placing himself in high risk situations, and then offending, even when thechance of detection was high. He has offended following sanctions and treatment forsexual offending, and while under the supervision of the Department of Corrections.Ms Falconer Beach suggests this is because he either struggled or did not intend toregulate his sexual impulses. Mr Clements' offending has been both planned andopportunistic and has been consistent over most of his lifetime. Ms Falconer Beachnotes that Mr Clements has issues self-regulating in other areas of his life, eitherintentionally or through his lack of ability to do so. She considers that he displayslittle capacity to regulate himself sexually.The offender's acceptance of responsibility or remorse for past offending (s107IAA(1)(d)(i))[23] Mr Clements reported that he feels responsible for his behaviours anddescribed feeling remorseful for his victims. Ms Falconer Beach notes these arerecently acquired views and that Mr Clements often, in his natural response to queriesabout responsibility, reflects a degree of belief that the behaviour was mutuallyconsensual. He blamed external forces for his offending. Prior to treatment hebelieved sexual activity with children was not harmful to the victim. In the first reportMs Falconer Beach finds that Mr Clements' newfound stance on responsibility andremorse is "fragile" and in the confines of a treatment programme within a prison unit.In the second report she highlights Mr Clements' recent offending against the 15-year-old female and records that his offending against that person indicates that he eitherlacks the ability or desire to feel remorse about his offending.The offender's understanding or concern about the impact of his offending on actualor potential victims (s 107IAA(1)(d)(ii))[24] Ms Falconer Beach in her first report observed that whilst Mr Clements hasreported an understanding and concern for victims and potential victims, this waslargely based on his own experience. In her second report, given the fresh offendingin which Mr Clements sent and received explicit images to the 15-year old female, MsFalconer Beach concluded that Mr Clements has no concern for his actual or potentialvictims and no understanding of the impact of his offending on them.Other relevant considerations[25] The health assessment report for Mr Clements detailed the clinical risk factorsthat have been considered. Actuarial instruments were utilised to evaluate the risk MrClements presents of committing further relevant sexual offences while in thecommunity.[26] The Automated Sexual Recidivism Scale-Revised (ASRS-R) places MrClements in a group that has been classified as at medium-high risk. The STATIC-99R(Coding Rules 2016) placed Mr Clements in the "well above average risk". Lastly, theViolence Risk Scale: Sexual Offense Version assessed Mr Clements as being in thehigh risk category.[27] Ms Falconer Beach concluded, based on the multi-method assessment of MrClements' risk of further relevant re-offending, that there is a high risk of Mr Clements'committing a further relevant offence while in the community.[28] In her overall conclusion in her second report, taking into account all of thefactors, Ms Falconer Beach concluded that "Mr Clements is considered to have a high(Well Above Average) risk of committing a further relevant sexual offence."Conclusions as to pattern of past offending and risk of future offending[29] In the foregoing review of evidence, I have drawn particularly upon the reportsof Ms Falconer Beach. The conclusions reached by Dr Brindley are parallel. DrBrindley's risk assessment is that Mr Clements' overall risk category of sexualrecidivism is high. I have refrained from drawing particular observations from DrBrindley's report, not by reason of any preference for the conclusions in one report orthe other but because (by reason of the parallel conclusions) reference to Ms FalconerBeach's reports alone adequately serves to explain my conclusions.[30] I was satisfied on the information provided to the Court that Mr Clements hasand has had a pervasive pattern of serious sexual offending, dating to when he was 13years old. There are multiple dynamic risks associated with his offending. There is ahigh risk that he will in future commit a relevant sexual offence.[31] On 27 May 2021 I exercised a discretion as to whether or not to make an ESO.5I recognised that to not make an ESO when I am satisfied of the statutory criteriaestablished would be exceptional given the high threshold and the statutory concernfor public safety.6Term of the ESO[32] The term of the ESO must not exceed ten years, and must be stated in the ordermade.7 Section 107I(5) provides:(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.[33] The Chief Executive sought a term of 10 years. Mr Clements, through MrNicholls, did not oppose such a term.[34] In Ms Falconer Beach's opinion, Mr Clements is considered to have a high riskof committing a further relevant sexual offence. She suggested that if the dynamic riskfactors remain unaddressed then this risk will remain at a high level over the long term.5 Chief Executive of Department of Corrections v Popata [2017] NZHC 2343 at [9].6 At [57].7 Parole Act, s 107I(4).[35] Given the expert opinions as to the high risk of reoffending and the seriousharm that in that event might be caused, I was satisfied that an ESO made for a periodof close to 10 years is the minimum required to address the risk Mr Clements posed tothe safety of the community.[36] The ESO imposed in the District Court has been in effect from 26 December2020. In making a fresh ESO, I am not strictly required to take into account the factthat it is replacing another ESO which has been in place for a relatively short time.The term of any ESO (not permitted to exceed 10 years) is ultimately to be determinedby the minimum period required to meet the risk assessments as provided for ins 107I(5) of the Act. I invited submissions from Ms Currie, for the Chief Executive,as to whether any term beyond one expiring on 26 December 2030 was required onthe evidence for community safety purposes under s 107I. She accepted that a termexpiring on 26 December 2030 would appropriately meet the requirements of thelegislation.[37] That is the term which I therefore attached to the ESO.Intensive monitoring[38] I found, by reason of the high risk posed by Mr Clements and the seriousnessof the harm which he might cause to victims, that it is important that he be the subjectof intensive monitoring. Ms Falconer Beach identified that the only form of riskreduction likely to succeed in Mr Clements' case is a high degree of continuousexternal monitoring and management of his behaviour, with restriction upon his abilityto access potential victims, either in person or through electronic means. Themaximum period of intensive monitoring is limited to 12 months from the date onwhich an ESO is made and the (intensive monitoring) condition imposed.[39] On the evidence I was satisfied the duration of intensive monitoring should be12 months from Mr Clements' sentence release date.Conclusion[40] Orders were accordingly made on 27 May 2021.Osborne JSolicitors:Crown Solicitor, ChristchurchT R Nicholls, Barrister, Christchurch