MCGREEVY v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 2349 [28 August 2023]

MCGREEVY v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 2349[28 August 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2016-409-125[2023] NZHC 2349UNDER Section 107M Parole Act 2002IN THE MATTER OF an application to cancel an extendedsupervision orderBETWEEN PATRICK JOHN MCGREEVYApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 23 August 2023Counsel: A J Bailey for ApplicantA L Mills for RespondentJudgment: 28 August 2023JUDGMENT OF CHURCHMAN JIntroduction[1] Mr Patrick McGreevy has applied pursuant to s 107M of the Parole Act 2002to cancel his extended supervision order (ESO).[2] He makes his application on the basis that he is not at high risk of committinga relevant sexual offence within the remaining term of his order.[3] The Court has the benefit of two clinical psychological reports, the first,adduced by the applicant, prepared by Mr Craig Prince and dated 16 June 2023, andthe second, adduced by the respondent, prepared by Ms Ruth Pracy and dated 5 April2023. Both Mr Prince and Ms Pracy gave oral evidence and were extensively cross-examined.Law in relation to ESOs for sexual offending[4] The purpose of an ESO is to protect members of the community from thosewho pose a real and ongoing risk of committing serious sexual or violent offences.1 Acourt may make an ESO if the court is satisfied the offender has, or has had, apervasive pattern of serious sexual offending, and there is a high risk that the offenderwill in future commit a relevant sexual offence.2[5] Section 107M(4) of the Parole Act provides that a court may order thecancellation of an ESO only if the applicant satisfies the court, on the basis of thematters set out in s 107IAA, that the offender does not pose a high risk of committinga relevant sexual offence within the remaining term of the order. The decision by acourt to cancel an ESO is discretionary.[6] The criteria that must be satisfied for an offender to be considered at high riskof committing a relevant sexual offence are listed in s 107IAA: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:1 Parole Act 2002, s 107I(1). I refer from now on in this judgment to ESOs only insofar as theyrelate to sexual offending.2 Section 107I(2).(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.[7] In MacIntosh v Chief Executive of Department of Corrections, the Court ofAppeal commented that determining whether there is a high risk that a given offenderwill commit a relevant sexual offence within a stated period "is an inherently difficultexercise".3 It described the first two considerations under s 107IAA(1) as "animatingcharacteristics" and the latter two as "protective characteristics".4[8] The use of the word "displays" in respect of the first factor does not mean suchtraits and behavioural characteristics must be externally manifested, but may be "latentand emerge only in certain contexts."5 A person has a "predilection" for serious sexualoffending if they have a preference or particular liking for serious sexual offending.6A "proclivity" embraces an inclination toward something considered morally wrongand encompasses the concept of a pattern.7[9] In Kiddell v Chief Executive of the Department of Corrections the Court heldthat a pervasive pattern is one that is sufficiently characteristic of the offender to serveas a predictor of future conduct.8 In Chief Executive of the Department of Correctionsv Ihimaera, Muir J considered that "[t]aken together the two words ['pervasive' and'pattern'] suggest that the previous offending must have characteristics so prevalentand common as to provide a reliable predictor of relevant future conduct."9[10] When considering whether an offender presents a high risk of committingrelevant sexual offences in future, the court will take into account anything that may3 MacIntosh v Chief Executive of Department of Corrections [2021] NZCA 218 at [22].4 At [22].5 Chief Executive Department of Corrections v Alinizi [2016] NZCA 458 at [26]–[28]; andChief Executive Department of Corrections v Douglas [2016] NZHC 3184 at [86].6 Chief Executive of the Department of Corrections v Dixon [2017] NZHC 1126 at [16]; andChief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [44].7 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [41], upheld onappeal by the Supreme Court in Holland v Chief Executive of the Department of Corrections[2017] NZSC 161; and Chief Executive of the Department of Corrections v Wrigley, above n 6, at[44].8 Kiddell v Chief Executive of the Department of Corrections [2019] NZCA 171.9 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [46].exacerbate or mitigate the risk, such as community support and the offender's responseto any treatment that has been undertaken.10[11] In making (or cancelling) an ESO, the court must be "satisfied" that the criteriain s 107I(2) (or s 107M(4)) and s 107IAA have (or have not) been established. Thereis no onus or standard of proof. The Court must make up its mind on the evidence.11If it is satisfied the statutory criteria are met, the court "may" make an ESO. There isdiscretion to refuse to make such an order.12 However, it would be exceptional not tomake an order when the criteria had been established, given the high threshold for anorder and the statutory concern for public safety.13Current approach to ESOs[12] In Chisnall v Attorney-General,14 the Court of Appeal made a declaration ofinconsistency between the Public Protection Order (PPO) and ESO regimes ands 26(2) of the New Zealand Bill of Rights Act 1990 (the NZBORA), which providesthat no one who has been finally acquitted, convicted or pardoned of an offence shallbe tried or punished for it again, and that the inconsistency had not been justified unders 5 of the NZBORA.[13] It has been clear since the Court of Appeal's 2006 decision in Belcher v ChiefExecutive of the Department of Corrections that an ESO is a second penalty whichengages s 26(2) of the NZBORA, and that the discretion to make an ESO must onlybe exercised where the ESO is a justified limitation on that right.15[14] Since the decision in Chisnall, cases have emphasised the requirement for"strong justification" needed for the imposition or continuation of an ESO.16 Theapplicant has invited me to recalibrate the approach, in light of Chisnall. However,10 Kiddell, above n 8, at [24].11 At [25].12 At [26]; and Chief Executive of the Department of Corrections v Popata [2017] NZHC 2343 at[9].13 Popata, above n 12, at [57].14 Chisnall v Attorney-General [2021] NZCA 616.15 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) at [47]–[49].16 R v Chief Executive of the Department of Corrections [2022] NZCA 225 at [53]; and Wilson vChief Executive of the Department of Corrections [2022] NZCA 289 at [20].since Chisnall the Court of Appeal has declined to recalibrate the statutory thresholdsbefore an ESO is made, pending the Supreme Court's decision on the appeal inChisnall. I similarly consider any such recalibration is both unnecessary and, in lightof this, premature. The rights-based approach is currently clear: "careful scrutiny"must be applied to ensure a proposed ESO, even where the statutory criteria for anorder are met, is "clearly" or "strongly" justified.17Issue in this application[15] The ultimate question in this application is whether the applicant remains athigh risk of committing a relevant sexual offence within the remaining term of hisESO.[16] The applicant submits he is not at high risk of committing a relevant sexualoffence within the remaining term of his order because he does not meet the first tworequirements for an ESO, described as the "animating characteristics" by the Court ofAppeal, namely that he does not display an intense drive, desire or urge to commit arelevant sexual offence (s 107IAA(1)(a)) and he does not have a predilection orproclivity for serious sexual offending (s 107IAA(1)(b)).[17] The respondent opposes the application. The respondent submits the evidenceis mixed in relation to the first factor, and the applicant has demonstrated a time-specific proclivity for relevant sexual offending and there remain some intermittentindicators of possible presence of risk in relation to the second factor.Discussion[18] In assessing whether these criteria are met, I turn to consider the informationcontained in the expert reports I have received from the two clinical psychologists whohave assessed the applicant and the evidence they gave in Court.17 See in addition Department of Corrections v Bell [2022] NZHC 2453; and Mosen v ChiefExecutive of the Department of Corrections [2022] NZCA 507 at [3] and [31].Display of intense drive, desire or urge to commit a relevant sexual offence[19] Ms Pracy observed that the applicant's 2004 sexually motivated offending was"demonstrative of an intense drive to commit a relevant sexual offence." Since thistime Ms Pracy noted there have been intermittent concerns which related to sexualpreoccupation or deviance, albeit with some evidence of risk management.[20] Ms Pracy concluded under this head that the evidence is mixed regarding theapplicant's drive or urge to engage in relevant sexual offences. She stated: [The applicant] demonstrated a brief and intense drive to engage inspecified sexual offending in 2004. However, this urge has not been sufficientto result in further sexual offending since the index offences, despite anextended period within the community.[21] The applicant has not sexually reoffended for almost two decades. Neither hasthe applicant been convicted for breaching his conditions for a decade. While someof this time has been spent in prison, the majority of it has seen the applicant living inthe community. Mr Prince considered the applicant "has had ample opportunity toreoffend if he wanted to."[22] The applicant committed the offending when he was 34. He is now 52. Bothexperts noted the applicant is likely to have matured somewhat with age, and risk ofsexual recidivism generally decreases with advancing age. Mr Prince considered theapplicant "does not appear to have come close to reoffending."[23] Mr Prince is of the opinion this criterion is no longer met. He said in his report,"[i]n my opinion, if his drive, desire, or urges were that intense, he would havereoffended by now."18 I note at this point that this assessment is a development onMr Prince's previous report, completed in February 2021, when he found the applicantat that time still posed a high risk of engaging in a relevant sexual offence. Mr Princeat that time had noted he was "somewhat optimistic" about the applicant makingprogress "over the next year or two". It appears such has been the case, givenMr Prince's change of assessment.18 Emphasis in original.[24] On the basis of the evidence I have received, I am not satisfied that theapplicant any longer displays an intense drive, desire, or urge to commit a relevantsexual offence.19[25] Accordingly, I am satisfied the applicant no longer presents a high risk ofcommitting a relevant sexual offence in relation to assessment under this factor.Predilection or proclivity for serious sexual offending[26] Both psychologists are of the opinion that the applicant does not have apredilection or proclivity for serious sexual offending. Ms Pracy noted that theapplicant "does not appear to have a predilection for serious sexual offending" andwhile the applicant "is considered to have demonstrated a time-specific proclivity forserious sexual offending", the intermittent indicators of possible presence of risk havenot resulted in sexually motivated offending. Mr Prince noted the applicant was "notappearing to display a predilection" for serious sexual offending and the applicant'sproclivity for serious sexual offending "appears to be historic, and no longer a factor."[27] The respondent does not challenge the psychologists' findings in this respect.It appears clear this criterion is also not satisfied.[28] Accordingly, I am also satisfied the applicant no longer presents a high risk ofcommitting a relevant sexual offence in terms of this factor.Conclusion as to risk of applicant committing relevant sexual offence[29] I am satisfied that the applicant currently neither displays an intense drive,desire, or urge to commit a relevant sexual offence, nor that he has a predilection orproclivity for serious sexual offending, in terms of the first two criteria unders 107IAA.19 See Wharton v Chief Executive of the Department of Corrections [2019] NZCA 320 for a similarsituation.[30] Accordingly, I do not consider the applicant remains at high risk of committinga relevant sexual offence within the remaining term of his ESO. The requirement forthe court to cancel the applicant's ESO under s 107M(4) is met.Cancellation of ESO[31] The decision to cancel an ESO is nevertheless discretionary.[32] I note my concerns in this regard if the ESO is to be cancelled. These areoutlined in Ms Pracy's report, in particular that the applicant presents a well aboveaverage risk of committing a further relevant sexual offence in the absence ofcommitted and informed community supports who hold him to account, such as anESO or a strong group of community and personal supports.[33] The applicant has no confirmed address and would be required to leave hisaccommodation within one month if the ESO ceases. The applicant has no personalsupports and relies wholly on professional support, some of which is only availablebecause of the ESO.[34] As Ms Pracy commented:If [the applicant's] ESO was to be cancelled in the near term, his release planwould very likely be insufficient to assist him to manage his risk of re-offending. Rather, in my view, the removal of supports has the potential toincrease the presence of dynamic risk factors.[35] Under cross-examination, Mr Prince accepted that without external supports inplace Mr McGreevy still posed a high risk of engaging in a relevant sexual offence.[36] He explained that the sorts of "external supports" he was referring to primarilyinvolved having stable accommodation, professional supports or family supportpresent to help him in the community. He also agreed that Mr McGreevy currentlyhad no support network other than professional support.[37] He noted Mr McGreevy had earlier this year received positive support frommental health services although this was set to change with a reversion to care fromprimary health services (his GP). Mr Prince thought that a recent change toMr McGreevy receiving his medication three monthly by injection rather than havingto take it every day orally, was also a positive development.[38] He acknowledged that even taking the medication three monthly still requireda conscious decision by Mr McGreevy to go to his GP and get the injections.[39] Mr Prince accepted that without having a family network or friends who couldobserve when Mr McGreevy was becoming mentally unwell, there was a risk he couldrelapse into the sort of risky behaviour Mr McGreevy had engaged in after he becameunwell at the end of 2022.[40] Mr Prince acknowledged that on the risk assessment instruments,Mr McGreevy was regarded as high risk and thought that was because he had notattended treatment successfully and not applied the things that he had learnt.Notwithstanding that, he thought Mr McGreevy, presently, could be described as lessthan high risk and was better described as being more of a mental health patient witha chronic mental illness.[41] Mr Prince expressed the view that further treatment was unlikely to achieve apositive outcome and the factor that most reduced the risk of reoffending wasMr McGreevy not wanting to go back to prison. He conceded that the key protectivefactor against risk was the presence of external supports.[42] As to the impact of the ESO being discharged, Mr Prince agreed that if theESO ended today, Mr McGreevy would struggle and that time for the Department ofCorrections to make suitable arrangements for new stable accommodation wasrequired. He acknowledged that there was currently no "release" plan.Analysis[43] The requirements for an ESO are no longer met and I consider it is notappropriate in these circumstances that the ESO continue. However, the psychologistswere both in agreement that without suitable supports, principally stableaccommodation and a support network, Mr McGreevy would be at high risk ofengaging in relevant sexual offending. It would therefore be irresponsible of me toimmediately discharge the ESO without allowing an opportunity for the Departmentof Corrections to arrange suitable accommodation and to attempt to put a supportnetwork in place.Outcome[44] I make an order discharging the ESO, such order to be effective on 13 October2023 in order to allow for suitable alternative stable accommodation to be obtainedand a transitional plan to be developed.Churchman JSolicitors:Crown Solicitor, Christchurch for Respondent