GLEN ALAN KIDDELL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 171

GLEN ALAN KIDDELL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA171 [20 May 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA470/2018[2019] NZCA 171BETWEEN GLEN ALAN KIDDELLAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 10 April 2019Court: Miller, Collins and Toogood JJCounsel: L M Herbke for AppellantRMA McCoubrey and S Navot for RespondentJudgment: 20 May 2019 at 11.00 amJUDGMENT OF THE COURTA Appeal allowed in part.B The extended supervision order is reduced from 10 years to five years.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Kiddell appeals1 against an extended supervision order imposed on himunder s 107I of the Parole Act 2002.21 Under s 107R of the Parole Act 2002, the appeal is treated as an appeal against sentence.2 Chief Executive of the Department of Corrections v Kiddell [2018] NZDC 12640 [ESO Decision].[2] The criteria for an order are that the appellant has or has had a pervasive patternof serious sexual or violent offending and presents a high risk of committing a relevantoffence in future.3 Mr Kiddell advances two claims:(a) He says that he has not had a pervasive pattern of serious sexualoffending so as to qualify for an order at all.(b) In the alternative, he says that Judge Gibson was wrong to impose themaximum term for an ESO, ten years, because the evidence did notsustain the conclusion that he would remain at high risk of committingrelevant sexual offences for that length of time. The evidence pointedto a term of somewhere between three and eight years.Mr Kiddell's history of sexual offending[3] The account that follows is based on Mr Kiddell's convictions in New Zealandand Australia, summaries of fact in relation to them and his own self-report. We notethat he denies or minimises almost all of the offending.[4] Mr Kiddell was convicted of obscene exposure in 1978. No summary of factsis available. His account was that a neighbour had seen him naked when walkingaround inside his parents' house.[5] In 1986, 1989 and 1990 Mr Kiddell was three times convicted in Australia forwilful exposure. His account is that he was swimming naked because he was part ofa nudist community at the time.[6] In 2011 Mr Kiddell was convicted in New Zealand for doing an indecent actin a public place. He was found guilty at trial. The Crown alleged that he undressedon a hillside by a beach where a teenage girl was swimming and masturbated whilelooking at her. He fled to Australia before sentencing.3 Parole Act, s 107I(2).[7] In 2015 he was convicted in Australia of committing an indecent act with aperson under 10 years of age, who was known to him. He exposed his penis to anine-year old girl in a swimming pool and masturbated. He asked her to touch hispenis and referred to his ejaculate as "cream" which "little girls like to eat".He grabbed the girl when she tried to swim away but released her. He asked her notto tell anyone. For this offending he served eight months' imprisonment and was thendeported to New Zealand where he was sentenced to intensive supervision andcommunity work for the 2011 offence.[8] In 2016 Mr Kiddell was convicted of indecent communication with a youngperson. He sent photos of his exposed penis to what he thought was a 13-year old girlin the Philippines. He described sexual activity he intended to have with her andclaimed to have taught many young girls to have sex. The person he wascommunicating with was in fact a police officer. The police found 138 images and14 video files of an objectionable nature on his computer. They included sexualactivity between adults and children. He also pleaded guilty to possessingobjectionable material. This offending earned him a sentence of two years'imprisonment.[9] Mr Kiddell's history includes a number of other incidents, all occurring inAustralia, that did not result in convictions. In 2000 he was reportedly seenmasturbating on a hotel balcony in view of schoolchildren. In 2013 he was allegedlyseen masturbating in bushes at a beach, in view of the complainant. He was chargedwith indecency but no conviction resulted. In 2015 his god-daughter complained topolice that he had sexually assaulted her on four occasions in 2008−2009, when shewas aged 8 or 9. The allegation was that he touched her vagina and asked her to touchhim. A police report records that he was charged with aggravated indecent assault, butno convictions resulted.[10] Mr Kiddell was born in 1957. It will be seen from his conviction history thathe has continued to offend frequently at a relatively late stage in life.The ESO application[11] The ESO application was brought on 6 November 2017. It is not in disputethat Mr Kiddell was eligible, in that he was subject to release conditions associatedwith a sentence for a relevant offence (being his 2016 convictions).4[12] The application was accompanied by a health assessor's report written byMs Sheila Ayala, a Corrections psychologist. Mr Kiddell commissioned his ownreport from Dr Annabel Clarke, a registered clinical psychologist. Their reportsaddressed the questions whether Mr Kiddell exhibited traits or behaviouralcharacteristics listed in s 107IAA(1) and whether there is a high risk that he will infuture commit a relevant sexual offence. Both experts gave oral evidence before JudgeGibson at the hearing on 9 May 2018.The District Court decision[13] The Judge reviewed Mr Kiddell's history and the evidence. He found itirrefutable that Mr Kiddell has a pervasive pattern of sexual offending. Mr Kiddellalso presents a high risk; he has an intense drive to commit relevant sexual offences,exhibits a proclivity to offend and limited capacity for self-regulation, tends tominimise almost all of the offending, and lacks remorse or responsibility.5 The Judgerecorded that both psychologists thought there was a high risk of Mr Kiddellcommitting a relevant sexual offence in future.[14] The Judge noted that Mr Kiddell had received limited treatment. It appearedthat he was ineligible for the SAFE programme run by Corrections. He had somelimited support in the community and had made some treatment gains, but the risk ofoffending remained high.[15] With respect to the term of the order, the Judge opted for 10 years becauseMr Kiddell's offending had escalated and continued despite his age.6 His conviction4 Parole Act, ss 107B and 107C(1).5 ESO Decision, above n 2, at [13]−[19].6 At [24]−[25].history suggested that he would remain at risk even if he did not offend for five years,the term recommended by Dr Clarke.The statutory tests[16] Section 107I of the Parole Act establishes that the purpose of an ESO is toprotect members of the community from those who, following receipt of a determinatesentence, "pose a real and ongoing risk of committing serious sexual or violentoffences". It establishes jurisdiction to make an ESO:107I Sentencing court may make extended supervision order(2) A sentencing court may make an extended supervision order if,following the hearing of an application made under section 107F,the court is satisfied, having considered the matters addressed inthe health 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.[17] We make a number of points about decision-making under this provision.First, the court is concerned with present or past behaviour, which determine aneligible offender's susceptibility to an ESO, and future risk, which ultimatelydetermines whether an ESO ought to be made. These are distinct criteria, both ofwhich must be satisfied.[18] Second, s 107I presumes that the health assessor's report may be relevant toboth pervasive pattern and future risk. That is so because the court must considerthe report when addressing both criteria.[19] The content of the report is prescribed. Section 107I refers to s 107F(2A),which states that the report must address whether there is a high risk of the offendercommitting a relevant sexual offence and whether the offender exhibits certainrisk-related traits or behavioural characteristics listed in s 107IAA(1), which in turnprovides: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 assessor's opinion on these matters may inform the court's conclusions on bothof the s 107I(2) criteria. By way of illustration, an assessor may conclude that anoffender exhibits a predilection or proclivity for offending because he has a pastpattern of behaving in that way.7[20] Third, information contained in the report need not qualify as admissibleevidence in criminal or civil proceedings, for the assessor may take into account anystatement of the offender or any other person concerning any conduct of the offender,whether or not it constitutes an offence or has been the subject of charge or conviction.8Consistent with that, the court is not confined to offending that has resulted in7 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 [Holland (CA)] at[41]−[42].8 Parole Act, s 107F(3).convictions and it may consider any evidence or information that it thinks fit, whetheror not admissible in a court of law.9[21] Fourth, the terms "pervasive pattern" and "serious sexual offending" and "highrisk" indicate that the assessment requires judgments of quality and degree.The decision-making exercise is fact-specific and evaluative.[22] Fifth, the term "serious sexual offending" in s 107I(2)(a) is not a term of artbut should be given its ordinary meaning. It is not confined to relevant sexual offenceslisted in s 107B(2).10 The adjective "serious" should also be given its natural meaning,viewed against the statutory purpose of protecting the community from those who posea real and ongoing risk of sexual offending.11 The relevant sexual offences listed ins 107B(2) are capable of being "serious" but are not exhaustive.12[23] Sixth, a pervasive pattern is one that is sufficiently characteristic ofthe offender to serve as a predictor of future conduct.13 We make several points aboutthis:(a) In ordinary usage, to be pervasive is to be present throughout.14The adjective is here used in connection with the behaviour of a person,and the legislation also identifies certain relevant traits orcharacteristics: an intense drive to commit relevant sexual offences, apredilection for serious sexual offending, limited self-regulatorycapacity and an absence of responsibility or an absence ofunderstanding of victim impact.15 It is for these reasons that we havedefined a pervasive pattern simply, as a pattern that is characteristic ofthe offender.9 Section 107H(2). See also Holland (CA), above n 7, at [42].10 Holland v Chief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1 NZLR771 [Holland (SC)] at [13]−[14].11 Holland (CA), above n 7, at [44]; and Holland (SC), above n 10, at [13].12 Holland (CA), above n 7, at [43].13 This standard is similar but not identical to that adopted in Chief Executive of the Department ofCorrections v Ihimaera [2017] NZHC 2228 at [46].14 See Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (OxfordUniversity Press, Melbourne, 2008).15 These are used in s 107IAA, which is concerned with risk of future offending, but as explained at[19] a past or present pattern of serious sexual offending may evidence the same characteristics.(b) The pattern must be sufficiently pervasive to serve as a predictor offuture conduct; we adopt that purposive standard because the patterndetermines whether the offender is susceptible to an ESO.(c) In ordinary usage "pattern" connotes regularity but a pattern may takeany form or sequence. A pattern that includes relevant but less seriousconduct may be found pervasive.16[24] Seventh, when considering whether the offender presents a high risk ofcommitting relevant sexual offences in future, the court will take into account anythingthat may exacerbate or mitigate risk, such as community support and the offender'sresponse to any treatment that has been undertaken. These considerations are alsorelevant to the term of an ESO, as noted below.[25] Eighth, the court must be "satisfied" that the criteria in s 107I(2) and s 107IAAhave been established. There is no onus or standard of proof; rather, the court mustmake up its mind on the evidence.17[26] Ninth, the court "may" make an ESO once satisfied that the statutory criteriahave been met; that is, it has a discretion to refuse an order.18[27] Finally, an ESO engages BORA-protected rights. This Court has previouslyheld that the ESO regime creates a retrospective double penalty, so contravening s 26of the New Zealand Bill of Rights Act 1990, but nonetheless must be given effectunder s 4 of that Act.19 The Supreme Court has recognised that the Parole Act'sstatutory purpose requires that courts not be denied clearly relevant information whendeciding whether an offender is eligible under s 107I for an ESO.20 But when decidingwhether to make an ESO, and for how long, courts must recognise that the order may16 Chief Executive of the Department of Corrections v Popata [2017] NZHC 2343 at [33].17 Holland (CA), above n 7, at [12] citing R v White (David) [1988] 1 NZLR 264 (CA) at 268; R vLeitch [1998] 1 NZLR 420 (CA) at 428; and Chief Executive of the Department of Corrections vMcIntosh HC Christchurch CRI-2004-409-162, 8 December 2004 at [20]–[21].18 Popata, above n 16, at [9].19 Belcher v Chief Executive of the Dept of Corrections [2007] 1 NZLR 507 (CA). This remains theposition following the Supreme Court decision in Holland (SC), above n 10, at [18].20 Holland (SC), above n 10, at [19].impinge substantially upon the offender's freedom of movement and association.21These rights must be borne in mind when deciding both whether the offender has orhad the necessary pervasive pattern of serious sexual offending and whether theoffender presents a high risk of future serious relevant offending.A pervasive pattern of serious sexual offending?[28] Mr Herbke, for Mr Kiddell, submitted that the only offending that mightqualify was that which was the subject of convictions and only one conviction, thatfor possessing objectionable material, could be considered serious sexual offending.Most of the other offending was non-contact offending. Much of it resulted incommunity-based sentences. The offence of committing an indecent act with a personunder 10 years of age is concerning, but there was no sexual contact and Mr Kiddellreceived a short sentence of 16 months' imprisonment. The offence of indecentcommunication with a young person was also a non-contact offence and the youngperson was fictitious so there was no actual victim. He submitted that there can be nopattern, let alone a pervasive pattern, of serious sexual offending in the circumstances.[29] Mr McCoubrey, for Corrections, submitted that the totality of Mr Kiddell'sbehaviour could be taken into account when considering whether or not there is apervasive pattern. He submitted that much of the offending was serious. For example,the 2011 incident involved following a 16-year-old victim who was swimming aloneand masturbating in front of her. The 2015 offending was sexual conduct with a child;the victim was only nine years old and the appellant repeatedly asked her to touch hispenis. He also grabbed her when she tried to swim away. The 2016 offence of indecentcommunication with a young person involved the intended sexual exploitation of ayoung female. The offence of possessing objectionable material (child pornography)was plainly serious. As this Court held in Holland,22 an arbitrary distinction shouldnot be drawn between contact and non-contact offences. The consumer of suchmaterial shares responsibility for the actual sexual exploitation of children, and in thiscase the sentencing judge described the offending as serious.2321 Holland (CA), above n 7, at [45].22 At [48].23 New Zealand Police v Kiddell [2017] NZDC 8513 at [5]–[6].[30] We agree with Judge Gibson that Mr Kiddell had and continues to have apervasive pattern of serious sexual offending. The expert evidence supports thatconclusion. Viewed overall, he has a longstanding history of sexual offendinginvolving children and young persons. This offending has been sufficiently frequentand regular to qualify as a pattern. Age has not reduced the frequency or seriousnessof his offending. Not all of it is serious, but we accept Mr McCoubrey's submissionthat the offences of sexual conduct with a child, indecent communication andpossessing objectionable material qualify, as does the 2008−2009 allegation ofindecent assault. It is true that much of his offending was non-contact, but his historyindicates that he will escalate to contact offending if the victim does not resist.A high risk of committing relevant sexual offences in future?[31] Mr Herbke did not contend directly that Judge Gibson was wrong to find a highrisk that Mr Kiddell would commit further relevant sexual offences in future.Counsel focused rather on the term of the order. We nonetheless address the questionof risk.[32] Both expert witnesses agreed that the risk is high. They agreed that Mr Kiddellexhibits all of the relevant traits or characteristics.24 Ms Ayala considered that there isa high risk that he may engage in relevant sexual offending within 10 years of release.His most likely victims could be females under the age of 16 and his most likelyreoffending would involve him committing indecent acts in the presence of anidentifiable victim. Given access, he could indecently assault or engage a child in asexual act.[33] Dr Clarke's opinion was in similar terms. She advised that: the risk of Mr Kiddell committing a further relevant sexual offence whilein the community is high. It is pertinent that Mr Kiddell's offending hasprogressively escalated in severity over time, despite sanctions and hisincreasing age. If Mr Kiddell were to re-offend, the most likely victims wouldbe females under the age of 16. However, he may also offend againstpubescent or adult females. Victims may be known or unknown to him, andoffending may occur in a public place or on the internet. The most likelyre-offending scenario appears to be non-contact sexual offences such asindecent exposure against a female under 16, or use of objectionable24 Parole Act, s 107IAA(1).publications of females under 16. However, he may also commit a contactoffence under some circumstances (Emphasis original.)[34] We accept these assessments.[35] The experts also agreed that Mr Kiddell needs intensive treatment for sexualoffending but has not received it. He has been recommended for the SAFE programmebut was twice refused entry. He had also been refused entry to an intensiverehabilitation programme for serving prisoners. We are told that he is part way throughone-on-one treatment with a Corrections psychologist. Dr Clarke considered that hehas made positive changes in his life and has made some progress, and Ms Ayalathought he would benefit from external support to build a pro-social support networkand develop emotional regulation skills. Neither expert suggested that his supportnetwork and treatment will sufficiently reduce his risk in the short term. Dr Clarkeconsidered rather that the risk will reduce gradually over time given participation inintensive treatment and the effects of ageing.[36] For these reasons we consider that the criteria for an ESO were satisfied andthe Judge was right to make one.The appropriate term of the ESO.[37] Section 107I(5) provides that the term of the order must be the minimumnecessary for community safety 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.[38] Mr Herbke submitted that neither expert supported the ten-year term adoptedby the Judge. Ms Ayala considered that three years was too short and a period of upto eight years offence-free would be a good indicator of reduced risk. Dr Clarkesuggested five years. She relied on the VRS:SO scale to predict that if he remainedoffence-free for five years his risk would reduce to average levels. She consideredthat that period would suffice to monitor his progress in treatment and his adherenceto release and safety plans.[39] Mr McCoubrey submitted that the Judge considered this evidence and it wasopen to him to conclude that Mr Kiddell's risk would not reduce to acceptable levelsin fewer than ten years.[40] We have summarised the Judge's reasons for choosing a 10-year term at [15]above. His reasons did not reflect potential gains from treatment. This is not a casein which it can be said that treatment has been tried and failed. Mr Kiddell has receivedvery little treatment until recently. The evidence indicates that he has made some gainsfrom such treatment as he has received. That being so, it is reasonable to assume thatso long as his risk remains high he will continue to receive and benefit fromappropriate treatment during the term of an ESO. We add that he has some limitedpro-social support. Finally, we observe that should his risk remain high at the end ofthe ESO it is open to Corrections to apply for an extension.25[41] For these reasons we consider that the appeal is well-founded on the alternativeground. In our opinion the evidence justified a term of five years.Result[42] The appeal is allowed in part. We decline to quash the ESO but we reduce itsterm from 10 years to five years.Solicitors:Barter Law, Auckland for AppellantCrown Law Office, Wellington for Respondent25 Parole Act, s 107F(1)(b).