LEWIS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZCA 99 [18 April 2018]

LEWIS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZCA 99[18 April 2018]NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFCOMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA463/2017[2018] NZCA 99BETWEEN DAVID RAYMOND LEWISAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 27 February 2018Court: Brown, Brewer and Collins JJCounsel: A J Bailey and E Huda for AppellantI R Murray for RespondentJudgment: 18 April 2018 at 11.30 amJUDGMENT OF THE COURTA The application to adduce new evidence is declined.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The appellant, Mr Lewis, has a lengthy history of sexually abusing childrenand possessing child pornography. In 2012 he was convicted on a number of seriouscharges of historical sexual offending on two victims during the periods 1976 to 1982and 1994 to 1996. He was imprisoned for six and a half years on 25 May 2012. Itwas common ground that he was an eligible offender in terms of s 107C of theParole Act 2002 (the Act).[2] On 10 August 2017 Judge O'Driscoll in the District Court at Christchurch1made an Extended Supervision Order (ESO) against Mr Lewis for a period ofseven years. Mr Lewis appeals from the judgment.[3] There are two limbs to his appeal: first a want of jurisdiction because of analleged deficiency in a report prepared in support of the application; second anerroneous conclusion in the judgment. In summary, his grounds of appeal are:• The Judge was wrong to find that the health assessor's report made anassessment as to whether or not there was a high risk that Mr Lewis wouldcommit a relevant sexual offence as required by s 107F(2A)(a)(ii) of theAct and hence the Judge had no jurisdiction to make an ESO.• Even if the Judge had jurisdiction to make an ESO against Mr Lewis, theJudge was wrong to find that there was a high risk that he would commit arelevant sexual offence.Statutory framework[4] An application for an ESO under s 107F of the Act must be accompanied by areport of a health assessor, the content of which is specified in s 107F(2A).107F Chief executive may apply for extended supervision order(2A) Every health assessor's report must address one or both of thefollowing questions:(a) whether—(i) the offender displays each of the traits andbehavioural characteristics specified in section107IAA(1); and1 Chief Executive of the Department of Corrections v Lewis [2017] NZDC 16804.(ii) there is a high risk that the offender will in futurecommit a relevant sexual offence:(b) whether—(i) the offender displays each of the behaviouralcharacteristics specified in section 107IAA(2); and(ii) there is a very high risk that the offender will in futurecommit a relevant violent offence.[5] "Relevant sexual offences" are those listed in s 107B(2), commonly known ascontact offending. They are to be contrasted with the term "relevant offence" whichincludes any of the offences specified in subs (2) (a relevant sexual offence), subs (2A)(a relevant violent offence) and subs (3) (certain offences under the Films, Videos, andPublications Classification Act 1993), referred to as non-contact offending.[6] Section 107IAA(1) specifies the matters in respect of which the Court must besatisfied of when assessing risk. It states: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 forpast offending:(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.The application and health assessor's report[7] The grounds for the application for the ESO were that Mr Lewis has or has hada pervasive pattern of serious sexual offending and that there is a high risk that he willin future commit a relevant sexual offence. The application was made in reliance ona report of Ms Katrina Falconer Beach, a registered clinical psychologist who hadinterviewed Mr Lewis on 27 September 2016 and 4 October 2016 for a total of twohours.[8] Her report commenced by recording the consent process, comments onMr Lewis's presentation and the variety of specific documents referred to and peopleconsulted in the preparation of the report. It then recited Mr Lewis's pattern ofprevious offences including unsanctioned offending, sanctioned offending and theindex offending. The treatment which had been provided to Mr Lewis since 2013 wasalso recorded.[9] The report then proceeded to consider Mr Lewis's potential to reoffend. Theevaluation of risk involved the application of a multi-method assessment strategycomprising:• The Automated Sexual Recidivism Scale (ASRS), an actuarial riskmeasure developed for the Department of Corrections to assist in theprediction of an offender's risk of sexual offending;• The Violence Risk Scale: Sexual Offender version (VRS:SO).[10] The report noted that research suggests that on average the risk of sexualreoffending diminishes with the offender's advancing age. It was observed howeverthat given Mr Lewis's most recent offending occurred when he was in his late 50s, hisadvancing age did not appear to have diminished his risk of sexual reoffending.[11] The report proceeded to address each of the four specified factors ins 107IAA(1)(a) to (d). The report's conclusion was in the following terms:41 Mr Lewis is a 71-year-old man who has an extensive history ofsexually offending against children, over a 34 year period. He has aclear deviant sexual interest in prepubescent children, particularlymales. He has demonstrated that he has an intense drive to offendagainst children and a proclivity and propensity to do so. WhileMr Lewis has been able to regulate his behaviour in other spheres ofhis life, he has been unable to successfully regulate his deviant sexualbehaviour, even while in the restrictive environment of a specialtreatment unit programme. Mr Lewis shows early signs of takingresponsibility for his sexual offending and feeling remorse for hisbehaviour. He also shows early signs of understanding, and beingconcerned about, the effects of his offending on his victims however,these are recent developments for Mr Lewis. Mr Lewis has completedtreatment through the KMSTU. Mr Lewis was regarded as makingminimal change during the treatment programme and is only nowbeing viewed as starting to gain insight into the factors contributingto his offending behaviour. Mr Lewis is assessed as being at high riskof further relevant sexual offending. Due to his deviant sexualinterest, his limited insight, and his poor ability to sexual self-regulate,risk reduction for Mr Lewis is likely to be more successful whensupported by external monitoring and managing of his behaviour.The hearing and subsequent events[12] At the hearing Mr Bailey cross-examined Ms Falconer Beach at some lengthabout the contents of both her report and a prior report dated 17 February 2015prepared for the Parole Board to which Ms Falconer Beach had made reference.[13] After the hearing concluded Mr Bailey filed a memorandum which addressedthe jurisdiction of the Court to make an ESO. It stated:2 It will be recalled that Ms Falconer Beach said in evidence that herrisk assessment of Mr Lewis, as set out in her written report dated1 December 2016, was for all potential sexual re-offending.Similarly, the tests she utilised (the ASRS and VRS:SO) assessedMr Lewis' risk of re-offending for all types of sexual offences.3 In Ms Falconer Beach's report she used the terms "relevant sexualre-offending" (para 30), "relevant offending" (para 33) and "relevantsexual offending" (para 41).4 However, it was plain from Ms Falconer Beach's evidence today thatwhen she prepared her report she did not make an overall assessmentas to Mr Lewis' future risk of committing a "relevant sexual offence"as defined in s 107B(2) of the Act. Rather, she made an assessmentabout Mr Lewis' risk of reoffending for any type of sexual offence.[14] After reciting 107F(2) and (2A) the memorandum continued:6 Therefore, whilst Ms Falconer Beach has used the terms outlined atparagraph 3 above, her report does not in fact provide an opinion asto whether Mr Lewis is at a high risk of committing a relevant sexualoffence (as defined by the Act).7 Accordingly, given it is a pre-requisite that the Applicant mustprovide the Court with a report which addresses that question, therespondent submits that the Court does not have jurisdiction to makean ESO.[15] Mr Bailey concluded by emphasising it was essential that a health assessor'sreport actually addresses the question which the Court was required to determine, thathad not happened, and the Court should not disregard that important prerequisite.[16] It appears that Mr Bailey's memorandum was the subject of several emailexchanges within the Department of Corrections which culminated inMs Falconer Beach sending a letter dated 31 July 2017 to Judge O'Driscoll. The letterwas addressed in the judgment as follows:2[85] While I received a letter from Ms Falconer Beach in response toMr Bailey's written submissions after I had reserved my decision, the letterdoes not add anything to what Ms Falconer Beach had already given inevidence so I do not see the letter as providing me with any new evidence thatneeded to be given in court or which should be the subject of anycross-examination. I do not take the contents into account in reaching mydecision in relation to the making of the ESO.The District Court judgment[17] After reviewing Mr Lewis's history of offending, the health assessor's report,the parties' submissions and the legislation, the judgment proceeded to consider thes 107IAA(1) factors. The jurisdiction argument concerning the sufficiency of thehealth assessor's report was addressed in this way:[19] As I understand Mr Bailey's submissions relating to the Court nothaving jurisdiction to impose an ESO, it is due to the Health Assessor referringin the report to Mr Lewis having a "high risk that he will engage in relevantoffending within 10 years of release" and "he is at high risk of further relevantsexual offending", rather than the health assessor making an assessment thatMr Lewis is at high risk that he will commit a "relevant sexual offence".[84] The criticism advanced by Mr Bailey that the Health Assessor'sopinion of Mr Lewis's risk of future offending being based on Mr Lewiscommitting a future "sexual offence" as opposed to a future "relevant sexualoffence" is not made out. The submission is the Court has no jurisdiction tomake an ESO because Ms Falconer Beach did not make an overall assessmentas to Mr Lewis's future risk of committing a "relevant sexual offence" asdefined in s l07B(2); rather her assessment was based on the risk ofreoffending for any type of sexual offence.2 Chief Executive of the Department of Corrections v Lewis, above n 1.[86] I accept there is a difference in the legislation between the terms"relevant offence": s 107B(1) and "relevant sexual offence"; s l07B(2) and ofcourse a more wide ranging number of charges that would be encompassedby the term "sexual offending".[87] Ms Falconer Beach has commented in her report that in her opinionMr Lewis is at high risk that he will engage in "relevant" offending within10 years of release: see para[33].[88] At page 9 of her report she has a heading "Risk Issues Relevant ToParole Act 2002, sl07IAA".[89] The conclusion at para [41] states that "Mr Lewis is assessed as beingat high risk of further relevant sexual offending".[90] I also note at para [33] of Ms Falconer Beach's report that she detailsthe types of offending that Mr Lewis is at high risk of committing. Theseoffences include manual or oral masturbation of the victims, forcedmasturbation of Mr Lewis by the victims "and the prospect of rape andsodomy cannot be discounted". These are relevant sexual offences which theHealth Assessor has clearly directed her mind to.[91] I am satisfied that the risk of committing a future sexual offence thatthe Health Assessor has referred to relates to relevant sexual offending asdefined by s 107B(2). I accept Ms Falconer Beach has referred to specificsexual offences that are not "relevant sexual offences", but she has alsoreferred to sexual offences that Mr Lewis may commit that are relevant sexualoffences.[92] I am accordingly satisfied that it is appropriate to make an order foran ESO as sought by the Department.[18] The Judge was satisfied that all of the qualifying criteria set out in s 107IAAwere satisfied. He accepted the evidence from Ms Falconer Beach that there is nospecific tool available to assess the risk of an offender committing a specific sexualoffence such as a relevant sexual offence, but said that that did not mean that the healthassessor could not take the tools into account in providing an opinion to the Court.3He observed that the assessment of risk is not determined on a simple analysis ofstatistics or on raw statistical information.4 In the Judge's view the health assessor'sopinion that Mr Lewis was at risk of committing a further relevant sexual offence wasa clinical consideration taking into account all of the relevant factors set outin s 107F(2A).53 At [79].4 At [83].5 At [83].[19] The Judge's assessment that the appropriate length of the ESO should beseven years was based on five factors:6• the age of Mr Lewis when he last offended in a serious way against childrenin 1995 and 1996;• his interest in objectionable material in 2003;• his then age, 71;• the indication that he may be making changes in the last two years since hecompleted treatment;• he would be subject to the provisions relating to being placed on theChild Protection Register which should at least in theory reduce the risk ofreoffending.Mr Lewis's application to adduce fresh evidence on appeal[20] Following the hearing, counsel for Mr Lewis sent a request to the Departmentof Corrections under the Privacy Act 1993 seeking copies of emails exchanged relatingto the ESO application in respect of Mr Lewis. A number of emails which involved atleast seven participants were provided by the Department in response. These wereattached to and referred to in Mr Bailey's written submissions.[21] The Department's submissions drew attention to the fact that Mr Lewis had notfollowed the proper rules of procedure for adducing new evidence on appeal.Consequently, one week before the appeal hearing Mr Bailey filed an application toadduce as fresh evidence the emails attached to his written submissions on the groundsthat the emails were fresh, credible and cogent.7[22] The application stated that the cogency of the emails was their consistency withthe submission for Mr Lewis that Ms Falconer Beach was not aware of what "relevant6 At [96].7 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.sexual offences" were when she prepared her report and therefore the emailscontradicted the respondent's submission that the report was directed at Mr Lewis'srisk of committing a relevant sexual offence. Indeed in his written submissionsMr Bailey suggested that the emails and Ms Falconer Beach's subsequent letter, whichthe Judge declined to read, could only be viewed as an attempted cover-up byMs Falconer Beach and the Department.[23] Although the emails were new, the same could not be said of the letter which,presumably for that reason, was not the subject of the application to adduce freshevidence. In the main, the emails were authored by persons who had not beenwitnesses. The Department's submissions challenged their admissibility. However,the fact that the proposed evidence was hearsay did not mean that it could not bereceived having regard to the broad power to receive evidence on appeal conferred bys 107H(2) of the Act.[24] Nevertheless we do not find the exchanges in the emails among the sevenparticipants informative on the issues advanced on the appeal and analysed below. Weagree with Mr Murray's submission that the proposed fresh evidence is not cogent inthat it does not undermine either Ms Falconer Beach's conclusions or the Judge'sdecision. We decline the application to adduce the emails as fresh evidence.First ground of appeal: lack of jurisdiction because of deficient report[25] Mr Bailey commenced by contending that the Judge had misunderstood hissubmission on this point, taking issue with the description of his argument at [19] ofthe judgment.8 In the circumstances we record his criticism verbatim:This was not correct. Counsel's issue was not so much with the precisephrases used by the Health Assessor in her report, but her oral evidence thather report was only directed at assessing the appellant's risk of committingany sexual offence. Whether the mandatory requirements of s 107F(2A)(a)(ii)was, in fact, complied with, rather than the phrases used in her report was theimportant point.[26] Mr Bailey's written submission reiterated that Ms Falconer Beach hadacknowledged in her evidence the non-specific nature of the type of risk addressed in8 At [17] above.her report, an acknowledgment which the Judge was said to have ignored. Referencewas made in particular to the following two passages from the cross-examination ofMs Falconer Beach:Q. Sure and what have you tried to make an assessment of when you'veprepared your extended supervision order report for this case?A. The risk of Mr Lewis sexually re-offending.Q. What type of sexual re-offending?A. None of the risk measures identify what kind of sexual re-offendingmight occur. So they can only ever identify whether or not, or thelikelihood of any sexual offending occurring.Q. And is that what you've done in this case, tried to identify the risks ofany sexual offending occurring?A. That's as far as we can go. I did put in my report the kinds of sexualre-offending that we would think might occur based on his history.Q. But your ultimate assessment in this case is in terms of all types ofpossible ?A. The risk measures do not identify specific things.Q. Are you specifically aware of the risk that a Judge needs to assesswhen determining whether the Judge should make an extendedsupervision order in terms of what type of offending?A. Yes.Q. Referring to Mr Lewis' criminal history, which ones come under theumbrella of an extended supervision order potential risk ofreoffending?A. Certainly the most recent four. The first one alone would put him inthe category of being able to be assessed for an ES Order.Q. Sorry?A. The one that happened in January '95.Q. No, I'm accepting Mr Lewis is eligible to have an extendedsupervision order made against him.A. Mhm.Q. But when determining whether one should, a Judge is required tomake an assessment of the risk of Mr Lewis committing specificfuture sexual offences and I'm asking you if you're aware which oneswould qualify when determining and focusing on that risk ofreoffending.A. I'm not exactly sure which ones a Judge is required to take intoaccount.Q. Right. I'm not so much criticising you for that. I just want to confirmthat when you talk about risk and high-risk you're talking about allsexual offending?A. Yes.[27] In our view Mr Bailey's argument conflated Ms Falconer Beach's entirely fairresponses to questions put to her about the capability of the various risk assessmenttools with her expression of opinion on the ultimate risk criterion. By contrast thatdistinction was recognised by the Judge.9[28] Ms Falconer Beach's acknowledgment that there was no specific tool availableto assess the risk of an offender committing a specific sexual offence was apparent inthe first passage of cross-examination relied on by Mr Bailey.10 That extract followeda discussion of several of the risk assessment tools, namely the STABLE-2007 and theRoC*RoI tools in addition to the ASRS and VRS:SO. Ms Falconer Beach's answerssimply related to the risk measures identified by such tools. We refer in particular toher second, third and fourth answers in that first extract.[29] The point was also apparent from her affirmative response to the final questionin the second extract. The references to "risk" and "high-risk" in Mr Bailey's questionrelated to the various categories of risk about which he had questionedMs Falconer Beach in the course of the cross-examination which preceded the firstextract quoted above.[30] The conflation occurred when Mr Bailey sought to translateMs Falconer Beach's acknowledgments about the limitations of the assessment toolsinto a criticism that her report failed to address the requirement that Mr Lewis must9 At [18] above.10 At [26] above.be shown to have a high risk of committing a specific relevant sexual offence. We donot consider that criticism is valid. Ms Falconer Beach's report did proceed to expressthe view at both paragraphs 33 and 41 that there was a high risk that Mr Lewis wouldengage in relevant sexual offending.[31] Paragraph 33, referred to by the Judge at [90], stated:33 It is considered that there is a high risk that Mr Lewis will engage inrelevant offending within 10 years of release. Should Mr Lewissexually re-offend, it would most likely occur in the context ofgrooming prepubescent children with whom he has repeated contact,including family members and children outside of his family.Mr Lewis is more likely to sexually offend against prepubescentmales than females. Offending is likely to take the form of Mr Lewisexposing himself to his victims; manual or oral masturbation of thevictims, forced masturbation of Mr Lewis by the victims, and theprospect of rape or sodomy cannot be discounted. Signs thatMr Lewis's risk of sexually re-offending is increasing include:Mr Lewis isolating himself from adults he knows; engaging inseemingly harmless contact with children, which may include offeringthem money or gifts; accessing child pornography images on theinternet; befriending the parents of a prepubescent child to ensureaccess to the child; and presenting as being sexually preoccupied. IfMr Lewis experiences a disruption to his daily routine, such as nolonger being able to engage in a valued adult activity, he is more likelyto sexually re-offend against children.[32] Mr Bailey criticised the Judge's reference at [91]11 to "may", arguing this wasnot sufficient to justify making an ESO against Mr Lewis. In our view the Judge's useof the word "may" simply reflected the fact that prospective offending was beingconsidered. Paragraph 33 of the report clearly expresses the view that contactoffending in the future was likely.[33] Mr Bailey also appeared to suggest that Ms Falconer Beach did not understandwhat qualified as a relevant sexual offence. We do not consider that the evidence readin its entirety supports that contention. In that regard we note the following extractfrom re-examination:Q. In paragraph 33 of your report which has referred to the risk –WITNESS REFERRED TO REPORT - PARAGRAPH 3311 At [17] above.Q. – it is considered there's a high-risk that Mr Lewis will engage inrelevant offending within 10 years of release. Now you've sort ofbeen asked about this but what I want you to confirm or not is whenyou're talking about relevant offending, are you meaning sexualoffending?A. Yes.Q. You do go on there and expand and talk about sexual offending and Ithink possibly what was being put to you in part in cross-examinationis that maybe there's only a chance that Mr Lewis will, you know,offend via the internet, the non-contact type offending. Now yourparagraph 3 appears to be contrary to that, am I right – ah, 33 sorry.A. Yes.Q. And you may not be aware that there is a definition of what a relevantsexual offence is –A. Yes.Q. – are you aware of that and the type of offending which – the risk ofhigh offending is to be a relevant sexual offence –A. Yes.Q. – and that's generally a contact offence?A. Yes.Q. In your view then, looking at everything that you have, is that still ahigh-risk of relevant contact sexual offending?A. Yes.[34] We agree with Mr Murray's submission that the combination of the report andMs Falconer Beach's oral evidence provided a clear platform for the finding that therewas a high risk of Mr Lewis committing a relevant sexual offence in the future. Thechallenge to the Judge's jurisdiction to make an ESO fails.Second ground of appeal: an erroneous conclusion[35] Mr Bailey submitted that, if Mr Lewis's risk of committing non-relevant sexualoffences was isolated and deducted from his overall risk of sexual reoffending, theonly logical conclusion was that he was not at high risk of committing a relevant sexualoffence. In support of that submission he drew attention to several matters:• Most of Mr Lewis's sexual-related convictions were for offences which donot qualify as relevant sexual offences.• Mr Lewis had not committed a relevant sexual offence since 1995, some22 years prior to the ESO hearing.• Pursuant to the VRS-SO testing tool his risk of reoffending for all sexualoffences was less than high, and only just above the nominal average forall sexual offenders.• The report for the Parole Board in February 201512 concluded that, ifMr Lewis reoffended, it would most likely take the form of his accessingsexual abuse images on a computer, which is non-contact offending.[36] Mr Murray submitted that the Judge had identified the correct legal tests andapplied them to the facts of the case. Mr Lewis is an eligible offender with a pervasivepattern of serious sexual offending. The Judge found the various statutory criteriaestablished and, assisted by the report writer but applying independent judgment,found the necessary risk established.[37] While Mr Lewis had suggested arguments (which the Judge did not accept)that might have led a different judge to reach a different conclusion on risk, it had notbeen shown that the Judge was wrong in the conclusions he reached. Mr Murray drewattention to an analogous example where an ESO imposed in a case of historicalcontact offending was upheld by the Supreme Court.13 The appellant unsuccessfullyargued that non-contact offences should not be considered as part of the pervasivepattern of sexual offending.[38] In an appeal under s 107R of the Act, Part 6 of the Criminal Procedure Act 2011applies, with necessary modifications, as if the appeal were an appeal againstsentence.14 We can discern no error either in the Judge's decision-making process or12 See [12] above.13 Holland v Chief Executive of the Department of Corrections [2017] NZSC 161.14 See Criminal Procedure Act 2011, s 250(2) and (3).in his conclusion that an ESO should be made in the case of Mr Lewis. In thecircumstances of the case we would not have reached a different conclusion.Result[39] The application to adduce new evidence is declined.[40] The appeal is dismissed.Solicitors:Patient & Williams, Christchurch for AppellantCrown Law Office, Wellington for Respondent