CHORD v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2020] NZCA 4

CHORD v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2020] NZCA 4 [4 February 2020]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA320/2019[2020] NZCA 4BETWEEN DAVID HUGH CHORDAppellantAND CHIEF EXECUTIVE OF DEPARTMENTOF CORRECTIONSRespondentHearing: 20 November 2019Court: Collins, Brewer and Gendall JJCounsel: N Levy for AppellantJ M O'Sullivan for RespondentJudgment: 4 February 2020 at 4.00 pmJUDGMENT OF THE COURTA The appeal is allowed.B The appellant's application to cancel the extended supervision order isremitted back to the District Court for reconsideration.____________________________________________________________________REASONS OF THE COURT(Given by Gendall J)Introduction[1] Mr Chord appeals against a refusal to cancel a 10-year extended supervisionorder (ESO) originally imposed on him in February 2011.1 His application to cancelthe ESO was brought under s 107M of the Parole Act 2002 (the Act). That applicationwas refused by Judge Tompkins in the District Court on 18 June 2019. Mr Chordappeals now to this Court.[2] An ESO is an order that may be made to protect members of the communityfrom those who, following release from serving a determinate prison sentence, posea real and ongoing risk of committing serious sexual or violent offences.2 Relevantly,a court may grant an ESO where it is satisfied that the offender has, or has had,a pervasive pattern of serious sexual offending and there is a high risk that the offenderwill in future commit a relevant sexual offence.3[3] Mr Chord has a history of sexual offending. His first offending dates back toApril 1991, when he was convicted of two charges of indecent assault on a boy under12, three charges of doing an indecent act with a boy under 12 and inducing orpermitting a boy under 12 to do an indecent act.[4] In November 1992, Mr Chord was sentenced in the High Court at Wellingtonto two years imprisonment following his conviction for sexual offending against a boyaged three years old.[5] In December 2009, Mr Chord was sentenced to imprisonment for six offencesfor committing an indecent act against three male complainants aged between 11 and15.4 For that offending he was sentenced to two years and nine months' imprisonment.1 Chord v Department of Corrections DC Wellington CRI-2018-085-3119, 18 June 2019.2 Parole Act 2002, s 107I(1).3 Section 107I(2).4 R v Chord DC Wellington CRI-2008-091-3148, 23 December 2009.[6] In 2011, when Mr Chord was to be released from prison, an application wasmade for an ESO.[7] When granting the ESO, Judge Barry considered Mr Chord posed a high riskof committing a relevant sexual offence.5 However, he noted that an application toreduce the term of the ESO could be made if there was a change in Mr Chord's positionwhich rendered the ESO no longer necessary.[8] The ESO came into effect on 16 May 2011. This was Mr Chord's statutoryrelease date from the last term of imprisonment imposed on him in 2009. The ESO isdue to expire on 21 August 2021.Application to cancel the ESO[9] In November 2018, Mr Chord applied to the District Court to have the ESOcancelled under s 107M of the Act.[10] Section 107M(4) provides that the Court may order cancellation of an ESOonly if the offender satisfies the Court on the basis of the matters set out in s 107IAAthat the offender does not pose a high risk of committing a relevant sexual offencewithin the remaining term of the order.[11] Section 107IAA(1) sets out matters the Court must be satisfied of whenassessing risk. A court may determine there is a high risk of Mr Chord committingrelevant sexual offending only if it is satisfied that he:(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:5 Department of Corrections v Chord DC Wellington CRI-2010-085-6878, 7 February 2011 at [6].(ii) an absence of understanding for or concern about the impactof his or her sexual offending on actual or potential victims.[12] Section 107M(4) provides for a discretionary power. The Court may cancelthe ESO only if it is satisfied that the offender does not pose a risk of committingfurther relevant offences. To satisfy the Court to the required standard in the case ofsexual offending, an application should be supported by psychological assessmentsdealing with each of the matters in s 107IAA(1).[13] In the decision under appeal, Judge Tompkins had before him two healthassessor's reports from psychologists, Paul Carlyon and Louise Jackson.The assessors found Mr Chord to be at a medium-high risk or at the lower end ofhigh-risk category.Mr Carlyon's report[14] Mr Carlyon is a clinical psychologist, experienced in providing assessmentsfor various statutory bodies.[15] He delivered a report dated 3 October 2018. By explicit reference to the criteriain s 107IAA of the Act, Mr Carlyon concluded in his accompanying affidavit:10. In respect of s 107IAA(l)(a), Mr Chord has demonstrated an intensedrive, desire or urge to commit a relevant sexual offence in the past.11. In respect of s 107IAA(l)(b), Mr Chord's past pattern of behaviour issuggestive [of] him presenting with a predilection and proclivity tocommit serious sexual offences against male children and youngadolescents.12. In respect of s 107IAA(l)(c), Mr Chord typically exhibits intact andeffective self-regulatory capacity13. In respect of s 107IAA(l)(d)(i), Mr Chord partially acceptsresponsibility for the offences committed, and the degree to which heexperiences remorse is limited.14. In respect of s 107IAA(1)(d)(ii), Mr Chord has intellectualawareness, but that does not always translate to the experience orexpression of genuine concern about the impact of his sexualoffending on actual or potential victims.[16] Against that background, Mr Carlyon concluded that Mr Chord presents: a medium-high risk of perpetrating a further relevant sexual offence, andnot a high risk [of similar offending].Ms Jackson's report[17] Ms Jackson is a registered psychologist currently employed in the Departmentof Corrections. She also provided a report for the Court in which she concluded:In terms of the issues relevant to [the] Parole Act 2002, s 107IAA the healthassessment writer considers that Mr Chord has displayed an intense drive andurge to commit a sexual offence, and has demonstrated a proclivity for seriousoffending. With regard to self-regulation, Mr Chord is considered to havethe capacity for self-regulation, however [he] is likely to have difficultyself managing in high risk situations without a range of external controls inplace, particularly with regard to managing any sexual compulsivity.Mr Chord's recognition of victim impact and experience of remorse isconsidered generally superficial, and there is mixed evidence for hisacceptance of responsibility.[18] On reviewing those reports, Judge Tompkins concluded that the only pointwhere Mr Chord might not pose a high risk is under s 107IAA(1)(c) — whether hehas limited self-regulatory capacity.6 The Judge quoted Mr Carlyon's opinion withrespect to this:In recent years Mr Chord has evidenced compliance with the ESO and stabilityin his day-to-day life. There is no evidence to suggest problematic substanceuse, volatile relationships or rapid cycling disengagement from recreationaland vocational pursuits. Similarly, while previously imprisoned, Mr Chordevidenced the capacity to maintain himself within institutional rules.Mr Chord's pattern of sexual offending is consistent in that rather than beingimpulsively committed, there is instead premeditation involvingmanipulation, ingratiation and active intent to achieve victim access. In myopinion, Mr Chord typically exhibits intact and effective self-regulatorycapacity.[19] Crucially, however, Mr Carlyon's opinion seems to be premised onthe continued beneficial effect of the current ESO-based oversight. The Judge quotedagain from Mr Carlyon's report:In my opinion, Mr Chord presented with a medium-high risk of perpetratinga further relevant sexual offence. He has a number of salient risk factorssuggesting elevated sexual recidivism risk. Most prominently, that includesa record of sexually deviant preference coupled with multiple instances of6 Chord v Department of Corrections, above n 1, at [20].sexual offending behaviour. Since being imprisoned in 2010 and subject toan ESO from 2011, Mr Chord has been subject to external controls to an extentthat impairs a full understanding of the risk that he poses in circumstanceswhere such controls are not in place.The Judge's reasoning[20] Judge Tompkins in his decision concluded that Mr Carlyon and Ms Jacksonwere both of the view that as a result of the ESO-based oversight, Mr Chord presentedonly with a medium-high risk of sexual offending.7[21] Should those controls be removed the Judge determined his level of risk waslikely to increase. That, the Judge said, explained Ms Jackson's qualified view thatMr Chord's self-regulatory capacity becomes more limited and questionable inhigh-risk situations relating to sexual offending. And, as Mr Carlyon expressly noted,the existence of the current ESO-based constraints and supervision "impairs" a fullunderstanding of Mr Chord's risk if such controls were removed.[22] Accordingly, Judge Tompkins found that Mr Chord did have limitedself-regulatory capacity. In those circumstances, he concluded that Mr Chord had notdischarged the onus on him to show that he did not pose a high risk of committinga relevant sexual offence, and the Judge declined the application.The present appeal[23] The present appeal is brought under s 107R of the Act which provides first,that appeals brought against a decision under s 107M of the Act are dealt with by thisCourt and, secondly, that pt 6 of the Criminal Procedure Act 2011 applies as far asapplicable with necessary modifications and, subject to s 107H of the Act, as ifthe appeal were an appeal against sentence.[24] On an appeal against a decision of the sentencing court to make or refusethe cancellation of an ESO, this Court must allow the appeal if it is satisfied that therewas an error in the imposition of the order made or the refusal to cancel and thatdifferent orders should be made.8 The onus is on the applicant to satisfy the Court that7 At [22].8 Criminal Procedure Act 2011, s 250(2).they no longer pose a high risk of committing a relevant sexual offence. Otherwisethe appeal must be dismissed.Appellant's submissions[25] Ms Levy for Mr Chord argues that the Court can no longer be satisfied thatMr Chord poses a high risk given the conclusions of the two expert witnesspsychologists (neither of whom say there is now a high risk).[26] Further, Ms Levy contends that, in breach of natural justice, the Judge failedto give the expert witnesses and counsel for Mr Chord the opportunity to respond andreply to what she describes as Judge Tompkins' "unheralded" reasoning contrary tothe uncontested conclusions of the expert witnesses.Assessment of risk[27] Ms Levy maintains that both experts agreed Mr Chord met three of the listedcriteria but expressed uncertainty as to the fourth, his ability to self-regulate. This wasbecause of an inability to assess behaviour outside the external controls necessarily inplace because of the existing ESO. The Judge said the uncertainty was caused byMr Chord being subject to existing controls. He concluded that if the ESO wascancelled and Mr Chord was not supported in his self-regulation, he would likely meetall the s 107IAA criteria.[28] The statutory criteria Ms Levy notes contain two parts. The first is that thereis a high risk of committing a specified sexual offence, and the second is that the fourparticular criteria in s 107IAA(1) are present. The Court can only determine there isa high risk if the four criteria are present, although the presence of all four factors isnot itself determinative of high risk.[29] Where one criterion is absent, Ms Levy says the Court may not make a findingof high risk. In this case, three criteria are present, and one is less certain.And, the experts agree the risk is medium-high. Mr Chord's position is that the Judgewrongly conflated the uncertainty about his limited self-regulatory capacity withuncertainty as to whether the risk of committing a relevant sexual offence was high ormedium-high.[30] Ms Levy suggests that, even if Judge Tompkins found that Mr Chord hadlimited self-regulatory traits, the Judge did not address the issue of whetherMr Chord's risk was high, rather than medium-high. Ms Levy contends that there isinsufficient evidence to find that there is an overall high risk.Breach of natural justice[31] The second ground of appeal alleges a breach of natural justice. Ms Levy saysthe Judge failed to give expert witnesses and counsel the opportunity to respond andreply to his reasoning.[32] The two experts were present in the District Court at 10 am on the day ofthe hearing which was for a list which included several other defended matters.When the list was completed counsel in the present case indicated they would not havequestions for either witness and the Judge was asked on behalf of the experts whetherthey needed to remain for questioning by him. He said they did not, and the expertsleft. Mr Chord's case was called at about 4 pm. After the hearing, which had takenplace at the end of a long and busy day, the Judge reserved his decision.[33] Ms Levy maintains that, when expert witnesses for each party agree ona critical issue, justice requires that a judicial fact finder give reasons for departingfrom that agreement and provide the witnesses with the opportunity comment onthe Judge's concerns. In support of that position, the appellant points to ss 99 and 100of the Evidence Act 2006 which allow the Judge to question or re-question witnesseswhere it is in the interests of justice.[34] Ms Levy submits the experts should have been recalled and asked to commenton the Judge's preliminary conclusion, that the risk of Mr Chord's committinga relevant sexual offence was high rather than medium-high.Respondent's submissionsAssessment of risk[35] The respondent says no error can be demonstrated in Judge Tompkins' decisionnot to cancel Mr Chord's ESO. The Judge had to be satisfied that Mr Chord had metthe onus on him to show that he no longer posed a high risk of committing a relevantsexual offence in the time remaining on his ESO, and he said he was not so satisfied.[36] While the overall conclusions of the health assessors were that Mr Chord wasat medium-high risk of committing a further relevant sexual offence, that was notthe end of the enquiry for the Judge. The Judge was not required, nor should have,simply rubber-stamped the health assessors' reports. What was required was anassessment of the evidence as a whole — including the entirety of the reports, and notsimply their ultimate conclusions on risk — to determine whether the Judge acceptedMr Chord no longer posed that high risk of sexual reoffending.[37] The respondent submits that the evaluation must be done from the point ofthe counterfactual — what would Mr Chord's position be if not subject to the ESO?The ESO is the only control mechanism currently in place for Mr Chord. It placesrestrictions on his association with his partner, who has child sex offendingconvictions, as well as restrictions on where he can live and his proximity to previousvictims. The respondent suggests that both health assessors were of the view thatthe assessment of risk was impacted by the fact of the ESO, and that its removal mightbe likely to change that assessment.[38] In assessing all the matters set out in s 107IAA(1)(a)–(d), and the healthassessors' reports before him, the respondent maintains the Judge was correct to findMr Chord had not shown that he did not pose a high risk of sexual offending againstchildren or adolescents[39] The major focus on this appeal, the respondent says, centres on the contentionthat Mr Chord was considered by the health assessors to have generally intactself-regulatory capacity in terms of s 107IAA(1)(c). But the question facing the Judgewas not as simple as whether or not s 107IAA(1) is satisfied. Althoughthe s 107IAA(1) matters form the basis for the Judge's assessment of risk, the ultimatequestion must be whether the Judge was satisfied Mr Chord no longer posed a highrisk of sexual reoffending. Given this, the respondent says, caveats were expressed bythe health assessors and identified by Judge Tompkins that are highly relevant:(a) Their assessment of risk was carried out in the context where Mr Chordhad been subject to external controls since 2010. Mr Carlyon noted inhis report that this had impacted a full understanding of risk thatMr Chord might pose in circumstances where such controls areremoved.(b) In her report Ms Jackson says that Mr Chord's capacity to regulate hisbehaviour becomes more limited in high risk situations. He has limitedinternal mechanisms to avoid high risk situations where sexualoffending might occur, other than by way of avoidance and distraction.Thus, the respondent says, in the absence of the ESO, the ability forthe Court to be satisfied he would be able to avoid such high-risksituations is minimal.Breach of natural justice[40] The allegation of a breach of natural justice is a corollary of the first appealground that the evidence of the health assessors did not support the Judge's conclusion,and therefore he should have put his concerns (as a preliminary finding) both tothe assessors and to counsel for the parties to give them an opportunity to respond.[41] The respondent, however, suggests that there is no requirement for the Judgeto put preliminary conclusions to a witness before making a final decision.Nor, the respondent says, is there a requirement for any question to be asked of anywitness, either by the Judge or by counsel. Here, neither counsel had requested tocross-examine any witness for the other side. Thus, the evidence before the Judge wasthe uncontested reports of Mr Carlyon and Ms Jackson. While the Judge was entitledto ask any question that, in his opinion, justice required, that merely gave hima discretion to do so. Given that neither counsel considered questioning necessary,the respondent maintains there was no basis for Judge Tompkins to necessarilyconsider that questioning was required.[42] The respondent concludes there was no breach of natural justice in the Judge'sdetermination of Mr Chord's application for cancellation of the ESO.AnalysisAssessment of risk[43] 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.9[44] Judge Tompkins had to be satisfied that Mr Chord did not pose a high risk aftercarefully assessing all the material, including historical and current factors, andthe experts' reports.[45] When exercising that discretion, the Judge should bear in mind that an ESOcan have substantial ongoing impact on an offender, given they have alreadycompleted the sentence imposed by the Court for their offending.[46] In the present case, each of the psychologists concluded that the appellant wasat medium-high risk of committing a relevant sexual offence — but they did notconclude that he was at high risk. A finding there is not a high risk does notautomatically result in cancellation of the ESO. Rather, it is a prerequisite forexercising the discretion to cancel or vary the ESO.[47] There was some discussion in the experts' reports concerning Mr Chord'sself-regulatory capacity. Ms Levy suggests the experts concluded that Mr Chord didnot have limited self-regulatory capacity, and therefore, this subsection was notsatisfied. We agree with counsel for the respondent, however, that the Judge is notbound simply to rubber stamp the reports of the experts. It was open to the Judge to9 Chief Executive, Department of Corrections v Alinizi [2016] NZCA 468 at [11].explore the discussion in the reports about the risk of Mr Chord reoffending inthe event that the ESO was cancelled.[48] To the extent that Mr Chord seeks to argue that there was no evidential basisfor the Judge's decision, we disagree. The Judge is not bound to follow the expertsreports and may depart from them.[49] We, however have concerns about the process adopted by the Judge.Breach of natural justice[50] The hearing was held without the two psychologists present.[51] The Judge concluded from the evidence that Mr Chord had not been able tosatisfy the Court in terms of s 107M that he no longer posed a high risk of committinga relevant sexual offence. This was in contrast to some of the evidence of the experts.[52] At a hearing for an ESO the Court has a wide power to take into account anyevidence or information that it thinks fit for the purpose of determining the applicationor appeal, whether or not it would be admissible in a court of law.10 There is alsoa requirement that the Court must provide a copy of every order made at or followingany hearing, along with the reasons for the order, to the offender, the chief executive,and the Police.11[53] In our view the Judge ought to have asked the report writers questions and havethem available for further examination and cross-examination in this proceeding.[54] In determining an ESO application it will still be open to a Judge to drawdifferent inferences than the experts or to reject their conclusions. However, wherea Judge has relied upon expert reports as heavily as he has in this case, it is appropriatethat any concerns or limitations the Judge sees in those reports be put to the expertsbefore a decision is reached. That did not happen in this way.10 Parole Act, s 107H(2).11 Section 107H(6).[55] The conclusions of the experts were that Mr Chord had some self-regulatorycapacity and that he posed a medium-high risk of reoffending. The Judge said he hadexamined their reports and he expanded on the experts' concessions that the reportswere an assessment of Mr Chord's self-control while subject to an ESO. The Judgesaid they were not assessments of the risk he would pose when the ESO was cancelled.He then inferred that, because Mr Chord only narrowly met the standard ofself-regulation when subject to an ESO, without the support of the ESO he would nothave self-regulatory capacity. But the Judge did not in his decision show that he hadinvestigated or explored in any way the opinions of the experts regarding Mr Chord'srisk in the period still remaining in his ESO.[56] The experts did acknowledge in their reports the difficulty in making anassessment where a person was under an ESO. In our view, however, the otherconclusion they both reached (that he posed a medium-high risk of reoffending) wasmore directed at the risks when he was released. Given what appears to be a finelybalanced case, it was necessary for the Judge to question the witnesses and to exploretheir reports with them. Without questioning those experts he chose to interpret whatthey had meant. In addition, the reports were not carefully analysed to any greatextent, despite the Judge relying on them in his decision. The limitations anduncertainty the Judge ought to have found should have been put to the experts.The experts should have been recalled and requested to comment on the preliminaryconclusion the Judge had reached from their reports.[57] The proper course here is for the matter to be referred back to the District Courtfor reconsideration.12Result[58] The appeal is allowed.[59] The matter is remitted back to the District Court for reconsideration.Solicitors:Crown Solicitor, Wellington for Respondent12 Section 107R; and Criminal Procedure Act, s 251(2)(c).