MILLER v DEPARTMENT OF CORRECTIONS [2022] NZHC 1342

MILLER v DEPARTMENT OF CORRECTIONS [2022] NZHC 1342 [8 June 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2017-485-015[2022] NZHC 1342IN THE MATTER of an application to cancel an ExtendedSupervision Order under s 107M of theParole Act 2002BETWEEN RICHARD MILLERApplicantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 16 May 2022Appearances: S J Fraser for the ApplicantF E Cleary for the RespondentJudgment: 8 June 2022JUDGMENT OF COOKE J(Cancellation of ESO)[1] By application dated 3 December 2021 Mr Miller applies under s 107M of theParole Act 2002 (the Act) to cancel the extended supervision order (ESO) to which heis subject.[2] By judgment dated 5 May 2021 I considered, and dismissed an earlierapplication by Mr Miller to cancel the ESO.1 When doing so, however, I encouragedMr Miller to make a further application once a plan had been developed by him andthe Department of Corrections (the Department) to facilitate his reintegration intosociety in a safe way.2 Such a plan has since been developed, and partly implemented.1 Miller v Department of Corrections [2021] NZHC 983.2 At [66].This new application is accordingly made in accordance with the encouragement Iearlier gave. For these reasons, while this is a fresh application under s 107M, iteffectively involves a continuation of the first application considered by me in Maylast year. This judgment should not be read in isolation from my earlier judgment.Rather it should be seen as a continuation of that judgment, including in terms of theanalysis undertaken of the statutory requirements and the consideration of Mr Miller'scircumstances against those requirements.Background[3] The ESO was first made by the Court on an unopposed basis on 17 October2017.3 Mr Miller had originally been sentenced in the District and High Courts in2008 in relation to sexual offending that had occurred over a number of years. Theearliest offending was in 1990. The offending involved sexual violation by rape,sexual violation by unlawful sexual connection, and indecent assault. The victimswere aged between 10 and 16 years of age. The effective sentence imposed by theCourt for the offending overall was nine years and nine months' imprisonment.[4] Mr Miller served the full period of his sentence without parole being granted.The Court was asked to make an ESO as the end of the term of imprisonmentapproached. The making of an ESO was not disputed, although the period was. TheDepartment of Corrections sought a 10 year term, but the Court ultimately imposedeight years.4[5] On 8 October 2020 Mr Miller made his first application to cancel the ESO.This application was heard by me in February 2021. That judgment involves a fullreview of Mr Miller's circumstances, and the application of the statutoryrequirements.5 Two matters were of particular significance. First, the "static" riskassessment tools applied by the experts suggested that Mr Miller was not at a high riskof reoffending. Static risk factors are those that are not changeable. The risk isassessed on an actuarial basis — that is, Mr Miller's risk of reoffending given factorssuch as his offending history, his age and other factors of this kind by comparison with3 Department of Corrections v Miller [2017] NZHC 2527.4 At [60].5 Miller v Department of Corrections, above n 1.other offenders with that history. But the application of the "dynamic" risk assessmenttools assessed him at a higher risk. Dynamic risk assessments seek to add in factorspersonal to the person being assessed — for example by introducing factors such asthe attitudes they appear to have. It was these dynamic risk assessment factors thatjustified the existence of the ESO in Mr Miller's case.[6] There is a level of uncertainty concerning the predictive value of dynamic riskassessments compared to static risk assessments.6 In addition, part of the difficulty inundertaking the dynamic risk assessment here was that Mr Miller was a "denier" —he did not admit his offending. That had implications for the outcome of the dynamicrisk assessments. For example, his denier status meant that he was not eligible forsome treatment programmes, and some information for the assessment normallyobtained during treatment (such as his attitudes) needed to be taken from other sources,such as the sentencing notes. The denier status, and its implications, partly explainedthe higher risk predicted by the dynamic tools. Yet the expert literature is clear thatdenial is not associated with increased risk.7 It was possible that his status as a denierhad accordingly had a disproportionate adverse impact on Mr Miller. I said in thatcontext:8 Mr Miller has served a full sentence of over nine years. He was not releasedon parole partly because he has denied his offending. A further eight year ESOhas then been imposed notwithstanding that he was identified as low tomoderate risk on the static risk assessments. That can be seen as a cumulative17 year period where he has been subject to highly restrictive controls. Unlessit is suggested he can be kept subject to an ESO almost indefinitely he willultimately need to be released into the community without such controls. Itseems to me that that feature has significance when it comes to consideringthe potential cancellation of the ESO.The potential for the imposition of further ESO orders for someone such asMr Miller can be problematic, particularly if they are implemented on aprecautionary basis. Given he is a denier, the inputs into the dynamic riskassessment tools will not likely change, and those tools may continually assesshim as high risk as a consequence. The State has a responsibility to facilitateMr Miller's reintegration into the community. If it does not do so it can befaced with the situation that it found itself in in Vincent v New Zealand ParoleBoard where the High Court ordered that an 83 year old man with stage fivedementia who had spent 52 years in prison under a sentence of preventativedetention was required to be released.96 At [43]–[47].7 At [39].8 At [52]–[53].9 Vincent v New Zealand Parole Board [2020] NZHC 3316. See particularly [101].[7] It was significant, however, that Mr Miller was subject to very significantcontrols under the ESO. He was living in accommodation on prison grounds, subjectto very limited ability to interact with the community with any normality, and he wasbeing electronically monitored. Those circumstances increased the risk associatedwith the removal of the ESO. I said:10 when considering whether to impose or cancel an ESO it is important toconsider the counterfactual. Mr Miller is currently living a highly controlledlife in a dwelling connected with the prison with a nightly curfew where hismovements are electronically monitored. He is very limited by the terms ofthe ESO. In assessing whether Mr Miller is a high risk it is necessary toconsider the environment in which he will live unrestrained by the ESO. Thatenvironment may be of critical significance in determining whether he meetsthe high risk threshold or not. An offender may not have the limited self-regulatory capacity, the predilection or proclivity, or display the intense driveor desire or urge to reoffend if the environment in which he will be releasedmean the factors in s 107IAA(1) are not manifest.[8] Mr Miller had no realistic plan around his reintegration into society at this time.The proposal involved him having the ESO lifted "cold turkey". He said he wouldlikely live at a motor camp, or accommodation of this kind, if the ESO was cancelled.I concluded that this kind of release from the constraints currently around him was notviable and would lead to the kind of risks that were evident in the dynamic riskassessment. As Mr Riley had said in his evidence, someone like Mr Miller could notbe held "on ice" and be released straight back into the community. There needed tobe something in the nature of a reintegration plan so that Mr Miller's risks could beproperly managed.[9] For that reason I formally declined the application to cancel the ESO, but onthe basis that both the Department and Mr Miller should work on a properreintegration plan. In doing so I identified particular features that I considered relevantto that plan, including the location in which Mr Miller should live (near to his brotherin Christchurch), the support from his family in Hawkes Bay, the development ofsocial networks and other types of assistance, and potentially employment. I said inthat context:11I also make the somewhat obvious point that if that environment is notprovided, including when the ESO lapses, there will likely be a greater risk.10 Miller v Department of Corrections, above n 1, at [56].11 At [63].Mr Miller mentioned that his brother is not well. It would be far better to movepromptly now rather than keeping Mr Miller on ice, and then the ESO lapsingin circumstances where the risk to the wider public may be increased.Mr Miller should not be kept under effective confinement forever. For thatreason the Department may have a responsibility to assist Mr Miller withdeveloping an appropriate environment to move to.What has happened since?[10] The current application is supported by further affidavits from Mr Miller andfrom Mr Riley who were both questioned on their evidence. I have not had a furtheraffidavit from the Department's risk assessment expert, Mr Carlyon. Apparently hewas not able to assist the Court further. The Department relies on the earlier reportsfiled by him. I do, however, have an affidavit from Ms Sandra MacFarlane who isMr Miller's current probation officer. She has been managing the ESO sinceDecember 2021. She has explained the steps that have been taken in recent times, andshe also raises matters of concern to the Department concerning the cancellation ofthe ESO.[11] A number of positive steps were taken following my earlier judgment in anattempt to establish an environment in which Mr Miller's reintegration into thecommunity could take place in a manner that mitigated the risks. The Department hassupported Mr Miller's relocation to Christchurch, and collaborated with Kāinga Orato secure him independent accommodation. This is the first time that Mr Miller haslived independently since his initial imprisonment. The accommodation is sufficientlyclose to his brother to allow his brother and his wife to support him.[12] Mr Miller's own family remain in Hawkes Bay, and they have provided lettersto suggest that they are also supporting Mr Miller's new life based in Christchurch.Mr Miller explained that he hoped to have more contact with his family once the ESOwas cancelled. At present he is not able to leave Christchurch, and he is electronicallymonitored.[13] In addition Mr Riley has explained he has been in contact with Mr Miller and,in a sense, is available to him in a mentoring role. Mr Riley is now retired and he isundertaking that role without payment, in effect performing what he said was his dutyas a good citizen. The community can be very thankful to Mr Riley for agreeing to dothis. I strongly recommend to Mr Miller that he make use of Mr Riley. A full andfrank relationship with him will be of obvious benefit to his future life.[14] Mr Miller also explained a degree of contact he was having with communitygroups, and friendships he was seeking to develop in the community more broadly.These can only be regarded as preliminary steps, but they are nevertheless importantsteps to allow Mr Miller to develop as normal a life as is possible. Securingemployment has been, and will be more difficult. Mr Miller has needed to explain hisconviction history, and he is currently electronically monitored.The statutory requirements[15] Subsequent to my earlier judgment in Mr Miller's case a full Court of the Courtof Appeal has released its judgment in Chisnall v Attorney-General.12 The Courtconcluded that the legislation establishing ESOs and other similar orders wasinconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990 (the Bill ofRights), and that the limitation on such rights was not demonstrably justified in a freeand democratic society under s 5 of the Bill of Rights. Whether the Court's judgmentmeans that there should be a reconsideration, or recalibration of the statutorythresholds that must be satisfied before such orders are made, or an adjustment to howthe provisions are applied in particular cases, does not arise for consideration in thiscase.13 But the Court of Appeal's judgment reinforces the view that I reached in theearlier judgment that the continuation of the ESO in Mr Miller's case can no longer bejustified provided he has a plan for reintegration into the community in an appropriateway.[16] Therefore, in the present case it is appropriate to consider the plan that has nowbeen partly implemented by the Department with Mr Miller to review whether theESO is still appropriate under the statutory requirements.[17] In order to do so it is appropriate to address not only the new circumstances,but also the matters that are raised by the Department relevant to those matters, and in12 Chisnall v Attorney-General [2021] NZCA 616, (2021) 13 HRNZ 49.13 See Department of Corrections v Gray [2021] NZHC 3558 at [19]–[25].particular the concerns they have raised that Mr Miller has not been complying withthe conditions of his ESO since they have been relaxed.The Department's concerns[18] The first matter raised by the Department is that on his first night inChristchurch in July 2021 Mr Miller breached the curfew condition of his ESO. Iaccept Mr Miller's explanation, however, that he had been told that he was no longersubject to a curfew, and that this was the reason why there was a breach. When hewas contacted about that breach he was at his brother's house for dinner, and simplyreturned to his own house when he was told this was required. It is not suggested thatthere was any conduct associated with his risk of sexual offending involved in this.For that reason this suggested breach can be put to one side.[19] The second matter raised by the Department has more significance. Mr Millerformed a relationship with a person who he had met in the community whilst shopping.There is no suggestion that this relationship was in any way inappropriate. ButMr Miller did not initially report this relationship to his probation officer, or Mr Riley.Neither did he initially disclose his offending history to his new partner. Moreover hisnew partner had a pre-school aged granddaughter who she cared for routinely. TheDepartment's concern was that Mr Miller would thereby gain access to a youngerchild.[20] There is no evidence to suggest that Mr Miller engaged in any inappropriatebehaviour in connection with this relationship. I accept that the fact Mr Miller did notdisclose this relationship to his probation officer was a cause for concern. Howeverhis reluctance to do so is, to some extent, understandable. He also subsequentlydisclosed his background to his partner. The Department made contact with thatpartner to confirm that that had taken place. For a period Mr Miller and his newpartner endeavoured to continue their relationship, but her family disapproved of therelationship. Mr Miller explained that they have now broken off their intimaterelationship, although they remain on friendly terms.[21] By itself I do not think this episode evidences any risk of reoffending. Ratherit reveals that Mr Miller wants to form a normal relationship, although there is adifficulty in him doing so given his conviction history. Although there is a concernthat Mr Miller was not forthright about disclosing these matters, I am not satisfied thatthis increases his risk of reoffending by itself.[22] The Department also raised a concern that Mr Miller was identified throughelectronic monitoring as being in the street in which his new partner's granddaughterlived, and that this would be a breach of the terms of his ESO. Mr Miller explained,however, that he had been waiting for his new partner outside in the car, and that hedid not enter the premises at which the grandchild was present. I have no reason todoubt that, and the Department do not suggest that Mr Miller made any contact withthe granddaughter.[23] The Department suggested that there was an inconsistency in what Mr Millerhad said about the interactions he had had with the family of his new partner. Inparticular they suggested that, at least at one point, Mr Miller had said that he had goneinside and met people at the address. Having heard Mr Miller's evidence it seems tome that this has involved some confusion. Mr Miller explained that there was anoccasion when he had gone inside to his new partner's mother's address, and he hadmet her mother (and her mother's sister). This is not an address at which a child waspresent. Again the Department do not suggest there has been any inappropriate contactwith a child, and I am satisfied there has not been.[24] The Department raised a further occasion where Mr Miller's electronicmonitoring disclosed that he had been at a church. Mr Miller accepts this. He saidthat he went into the church to pick up a food parcel, and that he had not appreciatedthat this would amount as going to a place that he was not entitled to visit. I acceptthat explanation.[25] The Department also raise a concern about Mr Miller's general attitude. Theysay that Mr Miller remains argumentative with them, and that he has said that heshould be allowed to go to places like public beaches. In evidence he explained thathe did want to go to places like public beaches, but that he was very aware of the neednot to do so when there were no children nearby, and that he was aware of this needas a protection mechanism for himself. I see no reason to doubt his explanation in thisrespect. More generally I accept that Mr Miller has a negative view of the Department,and that he does not like the level of control they have over his life. But by itself thatdoes not demonstrate a risk of reoffending of the level that would warrant acontinuation of the ESO. There is a tension between the Department's desire to keepcontrols over Mr Miller, and the need for him to develop as normal a life as possible.Those controls can be seen as tools to manage risk, or at least to keep close surveillanceof Mr Miller. But equally the controls inhibit Mr Miller's ability to reintegrate intothe community.[26] I also accept the point emphasised by Mr Fraser that, in any event, Mr Millerwill remain on the registered list of sex offenders, and that he must meet therequirements associated with the register, including the requirement to report to localpolice. That will mean that there will always be a level of oversight of Mr Miller,albeit more limited than it would be with an ESO.Conclusion[27] In opposing the application to cancel the ESO the Department outlined thesteps that had been taken, and its remaining concerns that have been addressed above.Ms Cleary submitted that the appropriate way forward was not to cancel the order butto continue a process of gradually removing the restrictions imposed by way ofcondition under the ESO. In that context it is the Parole Board, and not the Court thathas jurisdiction to amend the conditions.14[28] Mr Fraser argued that Mr Miller had made considerable progress, and that inthe 10 months since the conditions had been relaxed there had been no suggestion thathe had been engaged in any offending, or anything approaching it.[29] I accept that it is now appropriate for the ESO to be cancelled. That isultimately because I do not accept that the statutory pre-requisites for the continuationof the ESO under s 107I(2) of the Parole Act still exist. Mr Miller is not at a high riskof committing a relevant sexual offence in the future. The static risk assessments14 Parole Act 2002, s 107O; see also Moore v Chief Executive of the Department of Corrections[2019] NZHC 1212 at [39].suggest that he is not. The remaining concerns arising from a lack of a plan for hisrelease from the ESO restrictions have been addressed. That does not mean that it canbe said there is no risk. But before a person must remain subject to the very significantcontrols that are involved in an ESO the high thresholds set by the statutory provisionsmust be met. I do not accept that those thresholds exist any longer for Mr Miller.[30] For these reasons the ESO will be cancelled under s 107M of the Act.Cooke JSolicitors:Luke Cunningham Clere, Wellington for the Respondent