ENGLAND v CORRECTIONS [2021] NZCA 443

ENGLAND v CORRECTIONS [2021] NZCA 443 [7 September 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA456/2020[2021] NZCA 443BETWEEN PETER LEE ENGLANDAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 31 August 2021Court: Gilbert, Duffy and Ellis JJCounsel: A M S Williams for AppellantJ Mildenhall for RespondentJudgment: 7 September 2021 at 9.30 amJUDGMENT OF THE COURTA The application for leave to adduce further evidence is granted.B The appeal is allowed.C The extended supervision order imposed on the appellant by Judge Garlandon 21 July 2020 is quashed and the interim supervision order imposed on theappellant by Judge Neave on 13 December 2019 is reactivated.D The matter is remitted to the District Court for rehearing of the respondent'sapplication for an extended supervision order.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] On 21 July 2020 Judge Garland granted an application by the respondent underpt 1A of the Parole Act 2002 (the PA) and made Mr England subject to a 10-yearextended supervision order (ESO).1 Mr England now appeals against the making ofthat order.[2] For reasons that will become evident, the appeal can be dealt with quite briefly.The making of the order[3] In 2017 Mr England pleaded guilty to four charges of indecent assault on a girlunder 12.2 He was sentenced by Judge Zohrab in the District Court at Nelson to twoyears and one month's imprisonment.3 His parole eligibility date was 3 May 2018 andhis statutory release date and sentence expiry date was 20 September 2019.[4] On 21 August 2019 (prior to Mr England's release), the respondent made anapplication for an ESO and, pending determination of that application, an interimsupervision order (ISO).4 The application was accompanied by the health assessor'sreport in accordance with s 107F(2). As required by s 107F(2A) the report writer,Mr Paul Carlyon, considered (among other things) whether Mr England "displays eachof the traits and behavioural characteristics specified in section 107IAA(1)", namelywhether Mr England:(a) displays an intense drive, desire, or urge to commit a relevant sexualoffence; 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 for pastoffending:(ii) an absence of understanding for or concern about the impactof his or her sexual offending on actual or potential victims.1 Department of Corrections v England [2020] NZDC 14316 [District Court decision].2 Contrary to s 134 of the Crimes Act 1961. There is no dispute that this is eligibleoffending in terms of pt 1A of the Parole Act 2002.3 R v England [2017] NZDC 26480.4 The ISO was made by Judge Neave on 13 December 2019.[5] By virtue of s 107IAA(1), the court determining an ESO application mayconclude that an eligible offender meets the required high risk threshold only ifsatisfied that they display each of those traits or characteristics.[6] As regards the first limb of the 107IAA(1)(d) trait (an absence of acceptanceof responsibility and remorse for past offending), Mr Carlyon concluded that:Mr England has accepted responsibility for the current sexual offending andthrough treatment and subsequent assessments, including the currentassessment, has disclosed sexual offending and evidence of sexual deviancethat was previously unknown. He has been apparently candid about thebreadth of his sexual deviance and has accepted responsibility, specifically,for the current and prior contact sexual offences. With respect to Mr England'sexperience and display of remorse, he has exhibited and reported negativeemotional experience when reflecting on his offending. This has includedacknowledgement of the probable harm it has caused to direct and indirectvictims as well as the effect it has had on his own trajectory. Somewhatbalancing these observations, in respect to remorse specifically, Mr Englandengaged in a long term pattern of sexually harmful behaviour involvingvulnerable individuals over a lengthy period; it was not until his imprisonmentand involvement in [special treatment unit] intervention that remorse becameevident. In this assessor's opinion, Mr England accepted responsibility for hissexual offending and is remorseful for having committed it, and this is likelyan important component of his appropriate participation in treatment.However, the relative recency of this means it is untested as to how beneficialthis awareness will be for his behaviour in the community.[7] As regards the second and alternative s 107IAA(1)(d) trait (the offender'sunderstanding for or concern about the impact of his sexual offending on actual orpotential victims), Mr Carlyon opined:Mr England engaged in repetitive sexual offending against a broader contextof anti-sociality and other sexually harmful behaviours. That such a patternendured for many years suggested that even if Mr England understood theimpact of his offending on victims, that understanding was insufficient topreclude ongoing offending or to produce tangible concern for the victims.More recently, since he has completed [special treatment unit] intervention,Mr England has evidenced both understanding about and concern for, victimsof his offending. As with matters of accepting responsibility and exhibitingremorse, in this assessor's view Mr England's understanding for and concernabout impact on victims is recent but nevertheless present. It remains to beseen as to whether Mr England's expressions of concern and intellectualawareness about the harm sexual offending causes will meaningfullymoderate his risk of future sexual offending.[8] Interim supervision conditions were imposed upon Mr England's release fromprison on 18 September 2019, and on 13 December that year Judge Neave granted theISO application under s 107FA of the PA.[9] The ESO application came on for hearing before Judge Garland on 21 July2020. The Court had before it both Mr Carlyon's original report and an updated one,dated 17 July 2020. As regards the s 107IAA(1) factors, however, Mr Carlyon simplysaid:In conducting this update, the assessor has reviewed the evidence and opinionpreviously expressed in respect to each of the required s 107IAA areas. Nochanges have been made and the opinion in respect to each domain remainsas it was reported in the initial health assessment report.[10] Mr England was legally represented at the July 2020 hearing. In advance ofthis appeal, Mr England deposed that his lawyer failed to follow his instructions tooppose the ESO application. He says his lawyer failed to instruct an independentclinical psychologist to assess him. Instead, as Judge Garland recorded in his reasonsfor granting the application:[18] I received and considered written submissions from the ChiefExecutive. The defendant did not file any written submissions but indicatedthat he did not take issue with any of the submissions made on behalf of theChief Executive.[11] The Judge found all of the statutory criteria met and concluded that Mr Englandposed a high risk that he would in future commit a relevant sexual offence. Morespecifically, and as regards the alternative traits specified in s 107IAA(1)(d), he said:[41] I accept that the respondent has acknowledged responsibility for hisactions. However, it is equally clear that during the relevant periods ofoffending the respondent viewed himself as "above the law." As such, anyconcerns about the impact of his offending on the victims of his conduct are asecondary consideration to the need for immediate self-gratification.[12] The Judge then concluded that Mr England "displays an absence ofunderstanding for or concern about the impact of his sexual offending on his victims".55 At [44].[13] In terms of the duration of the order, the Judge said:6[46] I also accepted the submission of the Chief Executive that the term ofthe ESO ought to be for a period of 10 years. In reaching that view, Iconsidered that the level of risk posed by the respondent was high; that theharm that might be caused to victims was serious; and the duration of the risk,which is likely to be for the foreseeable future.Why the appeal must succeed[14] The affidavit sworn by Mr England contained, in essence, a serious issue oftrial counsel competence or error, namely that his lawyer had failed to follow hisinstructions on fundamental matters. This was first noted by this Court in Courtney J'sminute of 13 October 2020, when she observed:[2] The appeal appears to raise an issue about trial counsel conduct. Rule12A of the Court of Appeal (Criminal) Rules 2001 applies. The Registry is toarrange a teleconference with the parties. Counsel are reminded of theirobligations and professional responsibilities as detailed in Hall v R [2015]NZCA 403, [2018] 2 NZLR 26.[15] In subsequent minutes Courtney J recorded that:(a) Mr Williams — who had only just been assigned as Mr England'scounsel — had written to Mr England's former lawyer (16 October2020);(b) Mr Williams had contacted Mr England's former lawyer and wasawaiting the file (13 November 2020); and(c) Mr Williams had not yet received the file (14 December 2020).[16] And in a minute dated 16 February 2021, Courtney J said:[2] Mr Williams does not yet have the file from former counsel, . Itappears that he is having difficulty obtaining the file. I would expect that thereshould be no such difficulty and that the file will be made available toMr Williams in a timely fashion.6 By virtue of s 107I(4) and (5) of the Parole Act, the term of an ESO must not exceed 10 years andmust be for the minimum period required for the purposes of the safety of the community in lightof (a) the level of risk posed by the offender; (b) the seriousness of the harm that might be causedto victims; and (c) the likely duration of the risk.[17] By the time of the hearing before us some six months later, the file had still notbeen provided. Indeed, Ms Mildenhall for the Crown advised that despite both emailsand phone calls, the lawyer had been entirely unresponsive.[18] The only inference that can reasonably be drawn is that Mr England's formerlawyer accepts the truth of Mr England's evidence. Mr England wished to oppose theESO application but was unable to. His lawyer failed to follow Mr England'sinstructions to do so and he failed to take steps to secure the necessary evidence, inthe form of an independent health assessor's report.[19] It follows that there has been a miscarriage of justice and the ESO must bequashed and a rehearing directed.Other matters[20] There are three other matters to which we also refer for completeness. We thinkthey serve to underscore why it was so important that Mr England's counsel engagewith the issues with which the Court was required to deal.Jurisdiction[21] First, as will be evident from those parts of the health assessor's report and theJudge's decision set out above, it is at least arguable that neither of the alternatives 107IAA(1)(d) criteria was met here. If that is so, there was no jurisdiction to makethe ESO.[22] More particularly, on our reading of the relevant parts of Mr Carlyon's reporthe concluded that Mr England had, in recent times and as a result of the treatment hehad received:(a) accepted responsibility for his sexual offending and was remorseful forhaving committed it; and(b) evidenced both understanding about and concern for, victims of hisoffending.[23] But the Judge (in the passage quoted at [11] above) appears to have arrived ata different conclusion by ignoring Mr England's current presentation as reported byMr Carlyon (instead and now Mr Prince) and referring to his past offendingbehaviour.7 If that were the correct analysis, then it seems unlikely that an eligibleoffender would ever be able to display the requisite s 107IAA(1)(d) traits.Further evidence[24] Relatedly, Mr England sought leave to adduce further evidence in support ofhis appeal in the form of a report he has now obtained from an independent healthassessor, Mr Prince. The Crown responsibly did not oppose leave and we grant itaccordingly.[25] Although Mr Prince takes a different view from Mr Carlyon on certain matters,our conclusion above makes it strictly unnecessary to refer in any detail to his reporthere. What is, we think, noteworthy for present purposes is that Mr Prince endorsedMr Carlyon's views on the s 107IAA(d) jurisdictional issue to which we have referredimmediately above.[26] As far as Mr England's acceptance of responsibility and remorse for pastoffending (s 107IAA(1)(d)(i)) is concerned, Mr Prince said: I concur with Mr [Carlyon] . It is very clear to me that Mr England hasaccepted responsibility for his sexual offending and sexually deviantbehaviour, including disclosing information for which he had not beenconvicted for. Further, while he wilfully suspended concern for his victims atthe time of the offending, he has gained significant insight through treatment.I questioned him specifically around this, and in my opinion, he displaysappropriate remorse for his past offending. In my opinion, Mr England doesnot fulfil criteria of concern on this item.[27] And as regards s 107IAA(1)(d)(ii) (understanding for or concern about theimpact of his sexual offending on victims), he said:7 The Crown on appeal sought to justify this by reference to this Court's comment in McIntosh vChief Executive of the Department of Corrections [2021] NZCA 218 at [23] that the relevant focus(in terms of s 107IAA(1)(d)) must be on "whether the acceptance of responsibility, remorse,understanding or concern are material in the sense that they are present to a sufficient degreeto mitigate the relevant risk". But that does not seem to be the basis for the Judge's finding. Andwhether Mr Carlyon's report might form the basis of such a "materiality" conclusion is notsomething on which we propose to comment here.Mr [Carlyon] clearly states that Mr England "has evidenced bothunderstanding about and concern for victims of his offending" and that while"recent", is nevertheless "present" . I concur. I questioned Mr Englandspecifically around this, and in my opinion, he does not display any concernson this item.Term of the order[28] Lastly, there is the question of the duration of the order. The evidential basisfor the Judge's conclusion that the 10-year maximum term was warranted is far fromclear. It is not something that was addressed by Mr Carlyon at all. Rather, it simplyseems to be the terms for which Corrections advocated. That seems to us to be anothermatter requiring further exploration.Disposition[29] For the reasons given earlier, the ESO imposed on Mr England by JudgeGarland is quashed. The effect is that the application for an ESO remainsundetermined and the ISO imposed by Judge Neave on 13 December 2019 isreactivated, by virtue of s 107FA(6) of the PA, pending that determination.[30] In our view the appropriate disposition here is to remit the reactivated ESOapplication back to the District Court for rehearing. Mr England was effectivelydenied a hearing there because of his counsel's failure to carry out his instructions.Justice has miscarried. The only way to address the injustice is for Mr England'sopposition to be heard, the evidence of the experts to be properly tested in cross-examination and submissions from both counsel to be received andconsidered. Rehearing in the District Court is also the course that preserves normalappeal rights.Result[31] The application for leave to adduce further evidence is granted.[32] The appeal is allowed.[33] The ESO imposed on Mr England by Judge Garland on 21 July 2020 isquashed. The ISO imposed on Mr England by Judge Neave on 13 December 2019 isthereby reactivated.[34] The matter is remitted to the District Court for rehearing of the respondent'sapplication for an ESO.SolicitorsCrown Law Office, Wellington for Respondent