GLENN RODERICK HOLLAND v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZSC 86

GLENN RODERICK HOLLAND v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS[2017] NZSC 86 [8 June 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY COMPLAINANTS/PERSONSUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESSPROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE SUPREME COURT OF NEW ZEALANDSC 136/2016[2017] NZSC 86BETWEEN GLENN RODERICK HOLLANDApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentCourt: William Young, Glazebrook and Ellen France JJCounsel: W C Pyke for ApplicantR K Thomson for RespondentJudgment: 8 June 2017JUDGMENT OF THE COURTA The application for leave to appeal is granted in part(Holland v Chief Executive of the Department of Corrections[2016] NZCA 504).B The approved questions are:(a) Whether offences against the Films, Videos andPublications Classification Act 1993 set out in s 107B(3) ofthe Parole Act 2002 are relevant only to eligibility for anextended supervision order; and(b) If they are only relevant to eligibility, whether theextended supervision order should have been made.C The application for leave to appeal is otherwise dismissed.____________________________________________________________________REASONSBackground[1] Mr Holland has a history of sexual offending and possession of childpornography. This includes:(i) sexual offending in 1988 against a 13 year old female in Australia;(ii) importing child pornography in 1996;(iii) possessing child pornography in 1999;1(iv) party to sexual conduct in 2007 with a child outside of New Zealand(photographing a seven year old female holding or masturbating thepenis of an associate); and(v) possession of objectionable publications in 2008. This was arepresentative charge describing 33 images of females approximately10 years of age and younger, naked and partially naked, displayingtheir genitalia as well as Mr Holland and his genitalia. The hard drivecontaining these 33 images contained some 5000 images overall.[2] In March 2012 Mr Holland was sentenced to three years imprisonment for the2007 and 2008 offending.2 After his release in December 2014 an application for aninterim supervision order and an extended supervision order (ESO) was made by theDepartment of Corrections.1 We assume that the offences listed at (ii) and (iii) were under the Customs and Excise Act 1996.2 This was under the Crimes Act 1961, ss 144A(1)(a) and 66 and the Films, Videos and PublicationsClassifications Act 1993, s 131A [FVPCA]. These offences triggered his eligibility for an ESOunder pt 1A of the Parole Act 2002.[3] The application for an interim supervision order was granted on 11 June 2015.3On 6 November 2015 Mr Holland was arrested for breaching his interim supervisionconditions. In February 2016 Judge Fraser imposed an ESO for 10 years.4[4] Mr Holland appealed against the imposition of an ESO and alternatively thelength of the ESO to the Court of Appeal. This appeal was dismissed.5 Mr Hollandnow applies for leave to appeal to this Court.Grounds[5] Mr Holland submits that the courts below erred in their interpretation of theterms "serious sexual offence" and "pervasive pattern of serious sexual offending" inrelation to the ESO regime.6 In his submission, offences against the FVPCA (such ashis 2008 offending) are not sexual offences and are therefore are only relevant for theeligibility threshold, not for the assessment of whether there is a pervasive pattern ofserious sexual offending.7[6] Even if this argument does not succeed, Mr Holland submits that there was aninsufficient basis for the conclusion that there was a high risk of his committing arelevant sexual offence. He also submits that the courts below erred in the assessmentof the gravity of the offending and that the 10 year ESO period was disproportionateto the risk he posed.Our assessment[7] We grant leave with regard to the issue set out at [5].3 This came into force 12 June 2015.4 Department of Corrections v Holland [2016] NZDC 2441 [ESO Order].5 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 (Miller, Courtneyand Woodhouse JJ) [CA judgment].6 Mr Holland argues that before an extended supervision order (ESO) can be made, it must beconsidered "whether each instance is of sexual offending" and whether each instance individuallyamounts to serious sexual offending within the meaning of s 107I(2)(a). It is only when both ofthese questions have been addressed that the court can decide whether there is a pervasive patternof serious sexual offending as required for an ESO.7 The Court of Appeal took the FVPCA offending into account when making this assessment:CA judgment, above n 5, at [55]. See also ESO Order, above n 4, at [135] where "all ofMr Holland's offending" was considered to be serious sexual offending.[8] The arguments raised by Mr Holland set out at [6] relate to the particular factsof his case and therefore raise no issues of general or public importance. Nor is thereany risk of a miscarriage of justice, given the nature of his offending and the level ofrisk as outlined in the evidence put before the District Court.8 Leave is thereforedeclined on these issues.Solicitors:Crown Law Office, Wellington for Respondent8 The assessor for the Department of Corrections assessed Mr Holland as being at a high risk ofreoffending and concluded he demonstrated a "clear predilection and proclivity for sexualoffending against children". Mr Holland also minimised the sexual nature of his actions andrefused to take responsibility for them. Mr Holland's assessor said he was only at a moderate riskof reoffending, but did say a case could be made that there is a high risk Mr Holland would commita further sexual offence. He also agreed that Mr Holland did not accept responsibility for hisactions. For more, see ESO Order, above n 4, at [37]–[65] and [84]–[102]; and CA judgment,above n 5, at [14]–[28].