WHARTON v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 320 [23 July 2019]

WHARTON v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 320[23 July 2019]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 AOTEAROACA593/2018[2019] NZCA 320BETWEEN LAWRENCE PAUL WHARTONAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 25 June 2019Court: Wild, Thomas and Muir JJCounsel: G H Vear and A Spika for AppellantJ J Rhodes for RespondentJudgment: 23 July 2019 at 11.30 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal is allowed. The extended supervision order made on 11 May 2018is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)Introduction[1] Mr Wharton applies for leave to appeal out of time against a three-yearextended supervision order (ESO) made against him by Judge Bergseng in theDistrict Court at Manukau on 11 May 2018.1[2] Mr Wharton submits the Judge could not have been satisfied as to themandatory criteria in s 107IAA of the Parole Act 2002, and thus lacked jurisdiction tomake the ESO.Leave[3] The appeal was filed three and a half months out of time. Mr Wharton seeksto explain this delay on the basis of a combination of poor health and difficulties inobtaining legal assistance. We agree with counsel for the respondent that theseproblems are asserted rather than substantiated. But the appeal has merit andaccordingly we grant leave.Factual background[4] Mr Wharton is now 67. Through his life there have been three occasions ofoffending relevant to the ESO. Two were proved, the third alleged but not proved.[5] The first was in 1979 when Mr Wharton was 27. He was convicted on twocharges of obscene exposure. The information available to the Judge about this earlyoffending came from two sources. The first was the 30 November 2015 memorandumprepared by the Police Centre for Impact on Sexual Offending and addressed toDr David Jones, Senior Psychologist with the Department of Corrections (the CISOmemorandum). Dr Jones provided the requisite health assessor's report to the Judge.In relation to Mr Wharton's 1979 offending, the CISO memorandum states,he exposed himself and masturbated in view of witnesses. Dr Jones included this inhis report dated 27 January 2016. The second source is Mr Wharton's account thatthese convictions resulted "from his playing golf naked at night with friends".1 Department of Corrections v Wharton [2018] NZDC 7171.Dr Jones also included that in his report, but observed that the CISO description"might indicate more intrusive behaviour than that which [Mr Wharton] described."[6] The second occasion of offending is by far the most serious. In the late 1980s,Mr Wharton was managing a rugby league club in the Auckland area. By then he wasin his late 30s. He noticed a boy masturbating in one of the toilet cubicles in the clubrooms. Pornographic material was spread out on the floor. Mr Wharton took this boyinto another part of the club rooms and played a pornographic video in his presence.He masturbated himself and encouraged the boy to do the same. Then he masturbatedthe boy and had the boy masturbate him. Next he performed oral sex on the boy andhad the boy perform oral sex on him. This conduct was repeated over the next twoyears or so, nearly every Tuesday and Thursday when the boy came to the club forrugby league training. It also occurred during school holidays when the boy wasworking at the club rooms as a cleaner. The offending stopped when the boy left homeand moved away.[7] In dealing with the 1989–1991 offending, the CISO memorandum added:Information gathered by Police during the course of the investigationregarding [the boy] alleged WHARTON was well known amongst some of theboys at the rugby league club for such activities and that he offended againstother boys, but these allegations were not substantiated.[8] The third, unproven, occasion of offending occurred in 2008, whenMr Wharton was in his late 50s. He was tried but acquitted on charges of indecentlyassaulting and harassing a 14-year-old girl who was employed as a part-time cleanerat the rugby league club, which Mr Wharton was still managing. Of this allegedoffending the CISO memorandum stated:The Police Summary of Facts states WHARTON would allegedly walk aroundwith his penis hanging out the bottom of his shorts, and walk through the flatnaked after showering when alone with [the girl].Additionally, WHARTON allegedly made multiple lewd comments aboutwanting to have sexual intercourse with [the girl], along with [an] offer of$100 to do so, and on one occasion WHARTON allegedly touched her genitalarea on the outside of her shorts.[9] An important consideration for the Judge was Mr Wharton's denial of all threeoccasions of offending and his consequent refusal to undergo any treatment while inprison, on the ground that he should not be treated for things he did not do. We willrevert to that.Imprisonment, parole and an interim ESO[10] The serious offending over the 1989–1991 period was not reported to the policeuntil 2008. At trial, the jury found Mr Wharton guilty on two counts of sexualviolation and two counts of sexual assault on a boy aged between 12 and 16. All fourcharges were representative. On 7 September 2010 Judge McAuslan sentencedMr Wharton to six years' imprisonment.2[11] Mr Wharton was released from prison on parole on 25 February 2015.[12] On 5 September 2016, the day before Mr Wharton's sentence expired, theDistrict Court made an interim ESO. That order imposed the standard conditions setout in s 107JA of the Parole Act (essentially controls on residence, employment andcontact with young people) and special conditions including:a) To attend an assessment for the SAFE programme and to attend andcomplete the SAFE programme if and as recommended by the assessmentto the satisfaction of your probation officer and programme provider.b) To attend a psychological assessment and then to attend and complete anytreatment/counselling as recommended by the psychological assessmentto the satisfaction of your probation officer and treatment provider.The law[13] When made against a sexual offender such as Mr Wharton, an ESO aims toprotect members of the community if, following release from prison, the offenderposes a real and ongoing risk of committing sexual offences.3 Before it could makean ESO against Mr Wharton, the District Court had to be satisfied that he:42 R v Wharton DC Papakura CRI-2009-092-11850, 7 September 2010.3 Parole Act 2002, s 107I(1).4 Section 107I(2). The relevant sexual offences are set out in s 107B(2) of the Parole Act. Theyinclude serious sexual offences such as sexual violation, but also less serious sexual offences suchas indecent assault.(a) has, or has had, a pervasive pattern of serious sexual offending; and(b) there is a high risk he will in future commit a relevant sexual offence.[14] In Belcher v Chief Executive of the Department of Correction this Courtobserved:5 the jurisdiction [to make an ESO] depends upon the risk of relevantoffending being both real and ongoing and one that cannot sensibly be ignoredhaving regard to the nature and gravity of the likely reoffending.[15] As we said, this appeal concerns the criteria in s 107IAA(1) which provides: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.[16] The jurisdiction under s 107I to make an ESO was dependent on theDistrict Court being satisfied that each of those four criteria was met. Mr Wharton'sconsistent denial of offending means the fourth criterion is not in issue. But each ofthe other three was and is on this appeal. We will deal with each in turn, althoughthere is obviously some overlap between the three.5 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) at [11].First criterion: an intense drive, desire, or urge to commit a relevant sexualoffence[17] Judge Bergseng's conclusion on this first requirement was:6For the following reasons I am satisfied that the evidence establishes thatMr Wharton displays an intense urge to commit a relevant sexual offence,namely:(i) his denial of the offending and consequential inability to receiveand/or accept treatment;(ii) his self reported lack of a diminished sex drive is based on his poorhealth. Apart from being able to observe that he is overweight thereis no evidence before me as to his other health conditions; and(iii) the clear evidence of Dr Jones, which hasn't been disturbed bycross-examination.[18] In Chief Executive, Department of Corrections v Alinize, this Court held theword "displays", while requiring that the offender must currently possess the relevanttrait, does not require that it be externally manifested at the time of the ESOapplication.7 There followed the observation that a court:8 is likely to be satisfied that the statutory prerequisite in s 107IAA(1)(a) ispresent where there is nothing to suggest that such a trait formerly present nolonger subsists. A court will very likely come to such a conclusion where, ashere, an offender categorically denies the sexual offending for which he wasconvicted and as a consequence has been unwilling to undertake treatment todiscuss sexual offending.[19] As we mentioned, the Judge had a health assessor's report from Dr Jones.In this report the doctor set out the results of applying the various risk assessmentinstruments or tools to Mr Wharton. He concluded:In summary, based on a multi-method assessment of Mr Wharton's risk offurther relevant re-offending using RoC*RoI, ASRS, VRS-SO and PCL-SVratings and noted clinical factors, it is considered that there is a high risk ofMr Wharton committing a further relevant offence while in the community.The Judge summarised these results in somewhat more detail.9 We see no need to dothat because we view the doctor's own conclusions, expressed both in his reports and6 Department of Corrections v Wharton, above n 1, at [44].7 Chief Executive, Department of Corrections v Alinize [2016] NZCA 468 at [26]–[27].8 At [36].9 At [25]–[39].in evidence, as most relevant.[20] Dr Jones' main report was dated 27 January 2016, and followed a lengthyinterview with Mr Wharton on 24 November 2015. The doctor's opinion on this firstcriterion was: [Mr Wharton] had an intense drive to commit sexual offences in hismid-30s, and may have briefly again in his mid-50s, but not as a generalpattern throughout his life. It is also considered possible that his current illhealth has attenuated any urge which might have been present earlier.[21] Due to the time lapse, Dr Jones provided the Judge with an updated report on18 July 2017. This followed a second, also lengthy, interview on 5 July 2017.Dr Jones concluded this further report by stating that Mr Wharton appeared to havemanaged his behaviour effectively in the community over the intervening one and ahalf years, and confirmed his earlier conclusions as remaining valid. He added:It is considered that positive trends noted in that report regarding the apparentlack of a significant drive to commit sexual offences and stable self regulatorycapacity have continued, probably largely as a result of age and poor health.[22] Earlier in that report Dr Jones had stated:Mr Wharton reported having gained weight, and his health appeared to remainpoor. He reported having no sex drive and said he could not remember thelast time he was aroused, attributing this to his poor health and blood pressuremedication.[23] In his evidence before the Judge, Dr Jones confirmed that Mr Wharton'scontinued denial of any offending impacted on his ability to assess some of the factorsset out in the Parole Act for the making of an ESO. He told the Judge his assessmentof Mr Wharton's risk of sexual reoffending "would remain the same but I would saythat there is some evidence that the protective factors against re-offending hadimproved". Whilst accepting that generally sex drive decreased with age, Dr Jonestold the Court there were individual exceptions. He instanced the case of a 75-year-oldman who had a very high sex drive, higher than young men still in their teens.[24] Dr Jones was cross-examined about this first criterion — intense drive or urgeto commit a relevant sexual offence. After explaining the effect of this Court'sdecision in Alinize (though without specifically referring to the case) Dr Jones said:Today I do not think that Mr Wharton has an intense drive to sexually offend,but he could do again, I think his history is consistent with the suggestion thathe did have at one point, and although his age has reduced the likelihood ofthat happening again it hasn't eliminated it.[25] On that evidence, and assessed in the realistic and sensible way mandated bythis Court in Belcher, we do not consider the Judge could have been satisfiedMr Wharton still had — or "possessed" — an intense sexual desire or urge. It is thesum of the following six factors that leads us to this conclusion:(a) Twenty-eight years have elapsed since Mr Wharton's last proved sexualoffending ended. That is a lengthy period. Certainly, for five of thoseyears Mr Wharton was imprisoned. But during the other 23 years hewas living in the community without re-offending sexually. Thatcomment is subject to our next point.(b) We recorded at [8] above that Mr Wharton was charged but acquittedof further sexual offending in 2008. Counsel told us that the jury foundhim not guilty at the end of a three-day trial. Even assumingMr Wharton did offend against the 14-year-old girl as alleged, thatoffending was at a low level compared with, and was quite differentfrom, his proven 1989–1991 offending. Most serious was the allegationthat Mr Wharton had touched the girl's genital area on the outside ofher shorts.(c) The pre-sentence report dated 26 August 2010 which Judge McAuslanhad when sentencing Mr Wharton in September 2010 stated:A Departmental risk assessment tool, based on his age andprevious offending, indicates his calculated risk of re-offendingwith regards to any offending, regardless of type, is considered tobe very low. The writer concurs with this.(d) Mr Wharton behaved well in prison. Dr Jones reported:Mr Wharton's behaviour in prison is noted to have been of aconsistently high standard, with no misconducts or incidents, andhis file notes refer to him as a good worker, trustworthy and a rolemodel for younger prisoners.Our point here — and it is not a strong one — is that there were noreported instances of Mr Wharton making unwelcome sexual advancesto other prisoners, many of whom would have been much younger men.(e) Mr Wharton was released on parole after serving some four and a halfyears of his six-year sentence. In evidence, Dr Jones was asked aboutthe risk assessment of the Parole Board which decided to grantMr Wharton parole, as against Dr Jones' assessment for the purposesof the ESO application. He said that the Parole Board's assessmentinvolved "a global measure of risk, that is more comprehensive thanwhat I've used." He added that the psychologist who had reported tothe Parole Board did not have all the information Dr Jones had, withthe consequence "that report will have estimated Mr Wharton's risk ofreoffending as being lower than I estimated anyway". Dr Jones alsoagreed that granting Mr Wharton parole did not necessarily mean hehad insufficient risk for the purposes of the ESO application.He explained that the Parole Board sought to release sexual offenderson parole at a point that would give the offender time for communitysupervision, because it was an effective way to re-integrate offenderssafely into the community. He stated:The only time [the Parole Board] generally keep somebody inprison right to the end of their sentence is if their risk is consideredso high and so imminent that they're almost certainly likely tocommit another sexual and violent offence in the time left on theirsentence.Notwithstanding these explanations, we have some difficulty inreconciling the Parole Board's decision to release Mr Wharton into thecommunity in February 2015 with Dr Jones' view, expressed to theJudge in March 2018, effectively that Mr Wharton remained at highrisk of committing a relevant sexual offence.(f) Since his release on parole Mr Wharton had lived in the communitywithout any suggestion that he had reoffended sexually. Of course,throughout he was subject to parole and then ESO conditions. His onlyoffending since his release resulted in a conviction for driving withouta licence. In both his reports, Dr Jones accepted that Mr Wharton wasin poor health: he was visibly considerably overweight and short ofbreath. Dr Jones' updating report contained the passages we have setout in [20]–[22] above.Second criterion: a predilection or proclivity for serious sexual offending[26] Dr Jones began his consideration of this second criterion by outlining the factsof Mr Wharton's 1989–1991 offending against the boy at the rugby league club.Next he referred to the allegations involving the 14-year-old girl in 2008. He thenstated:There are no known indications of [Mr Wharton] having had a sexual interestin boys or children outside those two times. It is therefore considered thatMr Wharton may have a predilection or proclivity for offending in certaincircumstances, but probably did not for the majority of his life.[27] Judge Bergseng concluded:10[47] Given Mr Wharton's history and Dr Jones' assessment, I am satisfiedthat Mr Wharton's offending, while opportunistic, shows that he has aproclivity for serious sexual offending.[28] We do not consider the Judge could have been satisfied as to this criterion. Aswe read Dr Jones' conclusion, it is that Mr Wharton may have had the requisitepredilection in the circumstances he faced in 1989–1991 and perhaps also in 2008, butprobably has not had such a predilection before or since.Third criterion: limited self-regulatory capacity[29] In his report, Dr Jones referred to Mr Wharton's convictions for assaults, drinkdriving and shop lifting, almost all of it before 1993. Unsurprisingly, he consideredthose spoke "to poor behavioural regulation in his youth". But Dr Jones consideredthat Mr Wharton's good behaviour in prison and since his release suggested"improvements in this regard".10 Department of Corrections v Wharton, above n 1.[30] The Judge's conclusion on this third criterion was:[50] While his recent behaviour shows improvement, as noted by Dr Jones,on the basis of his past behaviour and that he remains an untreated sexoffender, I am satisfied that Mr Wharton still lacks the capacity to self-regulatehis offending behaviour, despite his age and health issues.[31] Again, we do not consider the Judge could have been satisfied as to thiscriterion. In our view, Mr Wharton's conduct since at least 2008 has demonstratedthat he has an adequate capacity to regulate his own life.Fourth criterion: lack of acceptance of responsibility[32] As we mentioned, this fourth criterion is not in issue on this appeal.We mention it only because Judge Bergseng regarded it as "particularly concerning".11We agree. It meant Mr Wharton declined the opportunity to attend the Te Piriti SpecialTreatment Unit for Sexual Offending while in prison. However, as Dr Jones reported,Mr Wharton did complete the short motivational programme with a departmentalpsychologist after his release. He attended five sessions during which risk factorswere identified and discussed. Then he engaged in three further individual sessionswith a psychologist to develop a safety plan.[33] As Mr Wharton was convicted of his 1989–1991 sexual offending, and hissubsequent appeal dismissed, this Court must treat him as a sexual offender.Conclusion[34] For the reasons given, we respectfully disagree with the Judge. In our view,he could not have been satisfied as to each of the criteria set out in s 107IAA(1)(a),(b) and (c) of the Parole Act. He accordingly lacked jurisdiction to make an ESO.Exercise of discretion under s 107I[35] Given our conclusion just stated, it is unnecessary to say anything further.However, we consider it worth mentioning that two further considerations would have11 At [51].been relevant, had we been required to decide whether the discretion under s 107I(2)to make an ESO had been correctly exercised.[36] First, at the time of his offending in 1989–91, Mr Wharton's marriage wasbreaking up. His offending stopped around the time he separated and took custody ofhis four children. It would be significant that he has a strong family support network.Following his release on parole, he attended two support planning meetings with hisfamily in September and December 2015. Dr Jones noted that the Parole Board haddescribed Mr Wharton's family as providing "impressive and thoughtful support",although the family apparently share Mr Wharton's own belief that he did not offendsexually. Two of Mr Wharton's daughters are approved adults for the purpose ofsupervising his contact with their children who were aged, as at January 2016, betweenfour and 15. This strong family support is a protective factor which would haveweighed against the making of an ESO.[37] Second, it appears that Mr Wharton is a registerable offender for the purposesof the Child Sex Offender Register established under the Child Protection (Child SexOffender Government Agency Registration) Act 2016.12 We are unsure whetherMr Wharton is, in fact, on the Child Sex Offender Register. But, if he is, that wouldbe a further protective factor to be taken into account. We are not to be taken assuggesting that these two factors would have been conclusive, just that the DistrictCourt would have needed to take them into account.Result[38] The application for an extension of time is granted.[39] The appeal is allowed. The extended supervision order made on 11 May 2018is quashed.Solicitors:Public Defence Service, Auckland for AppellantCrown Solicitor, Manukau for Respondent12 Mr Wharton was subject to an interim supervision order on 14 October 2015, following hisimprisonment for qualifying offences. That makes him a registrable offender under the ChildProtection (Child Sex Offender Government Agency Registration) Act 2016, sch 1, cl 1(1)(c).