GLENN RODERICK HOLLAND v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZSC 161

GLENN RODERICK HOLLAND v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS[2017] NZSC 161 [27 October 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: 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 161BETWEEN GLENN RODERICK HOLLANDAppellantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 3 October 2017Court: Elias CJ, William Young, Glazebrook, OʼRegan andEllen France JJCounsel: W C Pyke for AppellantC A Brook and R K Thomson for RespondentJudgment: 27 October 2017JUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS(Given by Glazebrook J)Introduction[1] In March 2012 Mr Holland was sentenced to three years imprisonment fordoing an indecent act on a child under 12 outside New Zealand1 and 12 monthsimprisonment (to be served concurrently) for knowingly possessing objectionablematerial in terms of s 131A of the Films, Videos, and Publications Classification Act1993 (the Classification Act).2 These offences meant he was eligible for an extendedsupervision order (ESO) under Part 1A of the Parole Act 2002. In February 2016Judge Fraser imposed an ESO for a period of 10 years.3[2] Mr Holland's appeal against the imposition of that order was dismissed by theCourt of Appeal on 17 October 2016.4 On 8 June 2017 this Court grantedMr Holland's application for leave to appeal against the decision.5 The approvedquestions were:6(a) whether offences against the Classification Act set out in s 107B(3) ofthe Parole Act are relevant only to eligibility for an ESO; and(b) if they are only relevant to eligibility, whether the ESO should havebeen imposed.Background[3] Mr Holland has a history of sexual offending and possession of childpornography. This includes:1 Pursuant to ss 132(3) and 144A of the Crimes Act 1961.2 R v Holland DC Auckland CRI-2010-004-15660, 14 March 2012.3 Department of Corrections v Holland [2016] NZDC 2441.4 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 (Miller, Courtneyand Woodhouse JJ).5 Holland v The Chief Executive of the Department of Corrections [2017] NZSC 86.6 Leave to appeal on other questions set out at [6] of the leave judgment was declined: see at [8] ofthat leave judgment.(a) sexual offending in 1988 against a 13 year old girl in Australia;7(b) importing child pornography in 1996;8(c) possessing child pornography in 1999;9(d) sexual conduct in 2007 with a child outside of New Zealand (directingand photographing a seven year old female holding or masturbating thepenis of an associate);10(e) two convictions for importing child pornography in 2007;11 and(f) possession of objectionable publications in 2008. This was arepresentative charge describing some 30 images of femalesapproximately 10 years of age and younger, naked and partially naked,displaying their genitalia. Mr Holland was visible in at least one of thephotographs, which were taken by a camera of the same make andmodel as his. The hard drive contained some 5000 objectionableimages overall.12[4] In addition, while he was subject to an interim supervision order Mr Hollandand an associate, who was also a convicted child sex offender, approached a 12 yearold girl at a shopping mall. Mr Holland asked whether she would like to participatein a recording contract opportunity. Mr Holland met the girl's parents to discussphotographing her. After researching Mr Holland and learning of his offendinghistory, the girl's parents reported him to the police. On a search of Mr Holland'shome more objectionable images were found.137 Two counts of oral sexual intercourse and four counts of attempted digital penetration with aperson under 16: see Holland v The Queen (1993) 68 A Crim R 176 (HCA) at 177.8 On his entry into New Zealand, Mr Holland's computer was found to contain images of nudechildren in sexualised poses.9 These offences also involved photographs of naked or semi-naked young girls in sexualisedpositions.10 This is the offending for which he received three years imprisonment referred to above at [1].11 Mr Holland was visible in two of the 23 images reviewed by the Classifications Office. Hiscomputer contained approximately 400 objectionable images.12 This is the Classification Act offence referred to above at [1].13 See Police v Holland [2015] NZDC 24386.The legislation[5] The ESO regime was first enacted in 2004.14 It applied to high risk child sexoffenders. In 2014, it was expanded to cover high risk sexual offenders generally andvery high risk violent offenders.15[6] To be an "eligible offender" for an ESO, under s 107C of the Parole Act, anoffender must have been convicted of a "relevant offence". Relevant offence isdefined in s 107B(1)(a) as including an offence described in ss 107B(2), (2A) and (3).It also, under s 107B(1)(d), includes an offence committed overseas that would comewithin subss (2) and (2A) had it been committed in New Zealand.[7] Section 107B(2) defines a relevant sexual offence as being offences underss 128B–143, 144A, 144C and 208 of the Crimes Act 1961. Section 107B(2A) listsvarious offences that are relevant violent offences. Section 107B(3) includes as arelevant offence an offence under the Classification Act if it is punishable byimprisonment and if the publication is objectionable because it does any or all of:(a) promotes or supports, or tends to promote or support, the exploitationof children, or young persons, or both, for sexual purposes:(b) describes, depicts, or otherwise deals with sexual conduct with or bychildren, or young persons, or both:(c) exploits the nudity of children, or young persons, or both.[8] Section 107I(2) deals with when an ESO can be imposed on an eligibleoffender:16A sentencing court may make an extended supervision order if, following thehearing of an application made under section 107F, the court is satisfied,having considered the matters addressed in the health assessor's report as setout in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of serious sexual orviolent offending; and(b) either or both of the following apply:14 Parole (Extended Supervision) Amendment Act 2004, s 11.15 Parole (Extended Supervision Orders) Amendment Act 2014, ss 6 and 7.16 Prior to 2014, a court had to be satisfied only that an offender was "likely" to commit a relevantoffence.(i) there is a high risk that the offender will in future commit arelevant sexual offence:(ii) there is a very high risk that the offender will in future commita relevant violent offence.[9] If these conditions are met, the sentencing court may impose an ESO for aperiod of up to 10 years.17Submissions[10] Mr Holland does not dispute that he was an eligible offender under s 107C. Healso accepts that the offences under the Classification Act are relevant for assessingwhether there was a high risk he could commit a relevant sexual offence unders 107I(2)(b)(i). He submits, however, that offences under theClassification Act should not be taken into account for the purpose of assessingwhether there is a pervasive pattern of serious sexual offending under s 107I(2)(a)because they are not relevant sexual offences as defined in s 107B(2). Nor do theycome within the plain meaning of the phrase "sexual offending". He submits thatParliament has carefully set out two pre-requisites for the imposition of ESOs and, inlight of the New Zealand Bill of Rights Act 1990 (Bill of Rights), these must beconstrued strictly given the significant incursion into liberty an ESO represents. In hissubmission, the requirement to establish a pervasive pattern of serious sexualoffending is essentially a filter to require a significant level of offending before theimposition of an ESO can be considered.18[11] The Chief Executive submits that Mr Holland's submission is not supported bythe plain words used or the regime's purpose. He points out that "serious sexual offending" is a different phrase from the specifically defined "relevant sexual offence"and that those two different phrases are used in s 107I(2)(a) and s 107I(2)(b)(i). Inaddition, Mr Holland's interpretation would deprive the court of relevant material asit would mean that his overseas convictions could not be considered as part of a patternof "serious sexual offending" because they are not listed in s 107B(2). Further inthis case, given Mr Holland's active participation in the Classification Act offences,17 Parole Act 2002, s 107I(4). The conditions of an ESO are set out in s 107J.18 The requirement for a pervasive pattern of serious sexual offending was introduced in 2014 bys 15(2) of the Parole (Extended Supervision Orders) Amendment Act.he could have been charged with an offence that is listed as a relevant sexual offenceunder s 107B(2). It would be arbitrary to deprive a court of obviously relevant materialmerely because of a decision to charge under the Classification Act rather than theCrimes Act. The Chief Executive submits that it is not possible to interpret theprovisions to conform with the Bill of Rights.19Our assessment[12] The ordinary meaning of the term sexual offending as it is used in s 107I(2)(a)would encompass the type of offending against the Classification Act committed byMr Holland because of the underlying sexual exploitation of children involved. Thisis particularly so because, as the Chief Executive highlighted, Mr Holland activelyparticipated in the making of many of the images which were the subject of theClassification Act offences.[13] The scheme of the legislation reinforces the view that the phrase sexualoffending should be given its ordinary meaning. The term sexual offending must beconstrued in light of the ESO regime as a whole. It would be very odd if the offendingagainst the Classification Act could be taken into account for eligibility and assessingrisk but not for assessing whether there is a pervasive pattern of serious sexualoffending. That would deprive the court of clearly relevant material at one stage ofthe assessment.[14] Further, we accept the Chief Executive's submission that, if it was onlyrelevant sexual offending as defined in s 107B(2) that could be taken into account,then that would have been made clear in the legislation. Instead, two different phraseswere used. It would also be odd, as the Chief Executive points out, if offencescommitted overseas could not considered and that a charging decision could deprivethe court of material relevant to its assessment.[15] Turning now to the Bill of Rights, s 5 provides that, subject to s 4, the rightsand freedoms contained in the Bill of Rights can be "subject only to such reasonable19 The Chief Executive refers to the Court of Appeal's decision in Belcher v Chief Executive of theDepartment of Corrections [2007] 1 NZLR 507 in this regard.limits prescribed by law as can be demonstrably justified in a free and democraticsociety". Section 6 of the Bill of Rights requires that whenever legislation "can" begiven a meaning consistent with the rights and freedoms affirmed, "that meaning shallbe preferred to any other meaning". Under s 4, if a rights-consistent interpretation isnot possible, legislation inconsistent with the Bill of Rights must still be applied.20[16] The ESO regime was considered by the Court of Appeal in Belcher v ChiefExecutive of the Department of Corrections.21 All of Mr Belcher's relevant offendinghad occurred before the introduction of the regime. The Court of Appeal held that theESO regime as it was in 2004 created a retrospective penalty contrary to ss 25 and 26of the Bill of Rights.22 The Chief Executive had not, in that case, sought to show thatthe retrospective nature of the ESO regime was justified under s 5 of the Bill ofRights.23 The Court of Appeal rejected Mr Belcher's submission that the legislationcould be given a meaning consistent with the rights in s 26 of the Bill of Rights.24 Ittook the view that there was no other meaning which could be given to the provisionsto avoid their retrospective effect. The Court was accordingly obliged by s 4 to applythe ESO regime despite the breach of s 26.[17] In his report on the ESO regime as extended in 2014, the Attorney-General, theHon Christopher Finlayson, concluded that the introduction of review requirementsmeant that the regime now complied with s 22 of the Bill of Rights (relating toarbitrary detention). He reported, however, that the regime was still in breach of s 26of the Bill of Rights in that it imposed a retrospective double penalty.25[18] In the present case, neither party seeks to challenge the approach taken inBelcher and in the report of the Attorney-General on the 2014 amendments. We are20 The relationship between ss 4, 5 and 6 was considered by this Court in R v Hansen [2007] NZSC 7,[2007] 3 NZLR 1.21 Belcher, above n 19.22 At [47]–[49]. That conclusion accorded with the view taken by the then Attorney-General, theHon Margaret Wilson, in her report to Parliament under s 7 of the Bill of Rights: Margaret Wilson"Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Parole(Extended Supervision) and Sentencing Amendment Bill" [2003] AJHR E63. Her report relatedto those offenders whose qualifying offences occurred before the introduction of the ESO regime.23 At [57].24 At [53]–[56].25 Christopher Finlayson "Report of the Attorney-General under the New Zealand Bill of Rights Act1990 on the Parole (Extended Supervision Orders) Amending Bill" [2014] AJHR J4.accordingly not asked to determine whether it is correct and thus assume, withoutdeciding, that it is. Rather, Mr Holland argues that the narrower interpretation ofs 107I(2)(a) he urges on the Court is an available one which this Court is obliged toprefer under s 6 of the Bill of Rights. That is because it limits the application of theESO regime to those whose pervasive pattern of offending is based on commission ofrelevant offences as defined in s 107B(2) and thus limits those who are subject to aregime that is not compliant with the Bill of Rights.[19] For the reasons already given, we do not accept that the narrow meaning is onethat "can" be given to s 107I(2)(a). The text and purpose of the ESO regime do notallow it. The narrow interpretation would deprive the court of highly relevant materialin the factual inquiry whether there is a pervasive pattern of serious sexual offending.It would risk creating distortions in treatment between defendants in similar positionsand unnecessary complexity. Nor does it answer the breach of the rights in s 26. Theargument is not for a rights-consistent interpretation of the ESO regime but forrestriction of its application to some offenders on a basis that would set up anomaliesand for which there is no justification in the text or purpose of the legislation.[20] This means that the first approved question must be answered in the negative.The second approved question thus falls away. If the offences under the ClassificationAct26 are taken into account alongside the convictions set out at [3](a) and (d) above,27this shows a pervasive pattern of serious sexual offending.2826 The offences set out above at [3](b) and (c) were we assume under the Customs and ExciseAct 1996. We do not need to decide whether these would be able to be taken into account butthere is a good argument they could be because by their nature they would be counted as serioussexual offending in terms of the ordinary meaning of the term and the scheme of the legislation asa whole: see above at [13].27 We do not need to decide whether the Classification Act offences could be taken into account ifthere had been no active participation by Mr Holland.28 The Chief Executive submitted that Parliament intended a broad enquiry into a "pervasive patternof serious sexual offending" which does not just include convictions. In this regard the ChiefExecutive refers to s 107F(3). We do not need to decide whether this broader material can betaken into account, either directly or as background, as it was not necessary in this case to haveregard to anything other than Mr Holland's convictions.Result[21] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent