NEPIA v CORRECTIONS [2019] NZHC 2485

NEPIA v CORRECTIONS [2019] NZHC 2485 [1 October 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2014-419-000004[2019] NZHC 2485BETWEEN ROBERT HENRY NEPIAApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 23 August 2019Appearances: A-M Beveridge for the ApplicantB Vaili for the RespondentJudgment: 1 October 2019JUDGMENT OF HINTON JThis judgment was delivered by me on 1 October 2019 at 11.00 amRegistrar/Deputy RegistrarCounsel/Solicitors:Ann-Marie Beveridge, Barrister, HamiltonAlmao Douch, Hamilton[1] This is an application for cancellation of a 10-year extended supervision orderimposed on 25 June 2014. The application is made under s 107M(4) of the Parole Act2002 (the Act).Background leading up to ESO[2] Mr Nepia has a terrible history of sexual offending against small children, boysand girls. His offending occurred during the period 1979 to 1996 when he wasbetween 15 and 32 years of age. There are many victims. They were all relatives,family friends, neighbours, children he babysat and the siblings of some of thosevictims. His offending was opportunistic and included taping the mouths of victimsso they could not call for help and threatening a five-year-old girl victim who had beenstaying at his family home that if she told anyone of his sexual assaults on her, hewould kill her parents and her nanny.[3] Mr Nepia was not charged with any of his offending until 2004 and was thensentenced to eight-and-a-half years' imprisonment for sexual offences against six maleand female victims aged between five and 13 years.[4] While in prison, attending the Kia Marama Programme for sexual offenders,Mr Nepia voluntarily disclosed a further eight sexual offences involving six victimsaged between five and seven years old and received a further cumulative sentence ofone year, 10 months. This further offending was also all between 1979 and 1996, orearlier. Remorse was noted as evident and taken into account at sentencing.1[5] Mr Nepia was released on parole in August 2011, but breached his releaseconditions on two occasions. The first was when he stayed overnight at an addressthat was not his approved address and the second when he associated with a boy under16 years of age. Mr Nepia was again released in January 2013. He was re-called forhaving a three-year-old girl residing at his residence. The expiry date for Mr Nepia'ssentences was 20 July 2014.1 Department of Corrections v Nepia [2014] NZHC 1448 at [5].[6] On 25 June 2014, Kós J imposed an extended supervision order on Mr Nepiaunder s 107B(2) of the Act for a period of 10 years, being the maximum term. Kós Jwas satisfied after considering health assessors' reports that Mr Nepia was likely tocommit a relevant sexual offence upon release. He found that there was a high, or atleast moderate-to-high, risk of relevant sexual offending re-occurring within the next10 years.[7] In making the order, Kós J pointed to Mr Nepia's ability to subsequently applyto vary or cancel the ESO. He said, as follows:2[39] Given the relative success of his treatment programme in prison,acknowledgement of the effects of his crimes, and with a satisfactory trackhistory behind him of positive re-engagement in the community, I wouldexpect the Court to receive favourably an application for variation or perhapscancellation. With a genuine track record behind him of positive reintegration,Mr Nepia must be a decent candidate for such application. But the proof mustbe in his actual integration into the community, and I am in no position to forma view about that now.[43] Now, I repeat, Mr Nepia deserves credit for his confession in prisonand the fact that he has completed the Kia Marama treatment programme. Irepeat what I have said already. Given a satisfactory number of years (and Iwould have thought that would need to be five) in which he has not reoffended,has not breached his conditions and has reintegrated satisfactorily back intothe community, then this would be an appropriate case for the Court to receivean application to vary or cancel the order that I have just imposed.Application to cancel ESO[8] On 19 November 2018, Mr Nepia filed this application for cancellation of theextended supervision order under s 107M of the Act. He relies primarily on two healthassessors' reports, a clean record since his release, satisfactory integration back intothe community, and support people and mechanisms available to him.[9] Corrections opposes the application to cancel the order, although it would befair to say that their opposition is not strong.2 Department of Corrections v Nepia [2014] NZHC 1448.Mr Lascelles' report[10] Mr Nepia has filed an affidavit by Mr Nick Lascelles, registered clinicalpsychologist. Mr Lascelles was the same psychologist who assessed Mr Nepia at thetime of the ESO application. He has concluded, in a report dated 7 June 2019, thatMr Nepia now has a moderate to moderate-high risk of relevant sexual offending.(At the time of the ESO, Mr Lascelles assessed Mr Nepia overall as having a mediumto high risk.) Mr Lascelles has also filed a brief supplementary report.Mr Ngamanu's report[11] Corrections has filed an affidavit by Mr Robert Ngamanu, registered clinicalpsychologist. Mr Ngamanu was not the psychologist who assessed Mr Nepia onbehalf of Corrections at the time of the ESO. Mr Ngamanu has concluded that overallMr Nepia is assessed as being in the moderate-high category for further sexualoffending. (At the time of the ESO, the psychologist instructed by Correctionsconcluded there was a high risk Mr Nepia would commit further relevant sexualoffences upon release into the community.)[12] Neither health assessor was required for cross-examination.Relevant law[13] Section 107M(4) of the Act provides that I may order cancellation of an ESOonly if Mr Nepia satisfies me on the basis of the matters set out in s 107IAA that hedoes not pose a high risk of committing a relevant sexual offence within the remainingterm of the order.[14] Section 107IAA(1) says that a Court may determine there is a high risk ofoffending only if it is satisfied that the offender—(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.[15] Ms Beveridge, counsel for Mr Nepia, says that the Court can no longer besatisfied that Mr Nepia poses a high risk given the conclusions of the twopsychologists (neither of which says there is now a high risk) and the fact thatMr Lascelles is not required for cross-examination, which she says means that hisreport is not disputed by the Crown.[16] However, as Ms Vaili submits for Corrections, I have to be satisfied thatMr Nepia does not pose a high risk after a careful assessment of all of the materialbefore me, including historical and current factors, and the experts' reports. Further,finding there is not a high risk does not automatically result in cancellation. It is aprerequisite for exercising the discretion to cancel or vary.[17] I also have to bear in mind that an ESO can have substantial ongoing impacton an offender, given they have already completed the sentence imposed by the Courtfor the offending.3Analysis[18] There is a heavy responsibility on the Court, and on psychologists preparingtheir reports, in cases such as this.[19] After considering the matter very carefully, I have decided to cancel the ESO.Mr Nepia has satisfied me, on the basis of the criteria set out in s 107IAA(1) that hedoes not pose a high risk of committing a relevant sexual offence within the remainingterm of the ESO order, being approximately a further five years. Further, for the otherreasons advanced by his counsel, I am satisfied that I should exercise my discretion tocancel the order.3 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006 at [32].[20] I set out my reasons for that decision below.Psychologists' reports[21] First, I am strongly influenced by the psychologists' reports, neither of whichplaces Mr Nepia in a high-risk category. I accept these reports have been carefullyprepared by suitably-qualified experts. Mr Lascelles has prepared two reports inrespect of Mr Nepia, including a report prior to the ESO being made in 2014. As notedabove, Mr Lascelles assesses Mr Nepia as moderate to moderate-high risk andMr Ngamanu assesses Mr Nepia as moderate to high risk. I have read the reports andam satisfied they both properly take account of all of the s 107IAA(1) matters.[22] As Mr Lascelles explains in an addendum filed subsequent to his report, amoderate to high risk is in fact substantially different from a high risk in this context,although the language "moderate to high" may appear to encompass a high risk. Heexplains this further, as I summarise below, none of which is disputed by Corrections:(a) On the Automated Sexual Recidivism Scale, Mr Nepia scores in themedium-high range. For New Zealand offenders scoring in themedium-high range who have child victims, the associated five-yearrecidivism percentage is 9.68 per cent. The group scoring in the highrange reoffended at a rate of 18.75 per cent. The high-risk grouptherefore reoffends at about twice the rate of the medium-high group.(b) The Static-99R instrument uses different language to describe risk. Onthat measure, Mr Nepia scores in the "average" range. The group ofoffenders in the normative sample scoring in the average range had asexual recidivism percentage between 3.5 and 5.6 per cent overfive years. The group scoring in the "well above average" reoffendedat a rate between 16.4 and 36.4 per cent.(c) On the violence risk scale: sexual offender version, Mr Nepia scores inthe medium-high range. The group of offenders in the normativesample scoring in the moderate-high range had a sexual recidivismpercentage of 10.5 per cent over five years. The group scoring in thehigh range reoffended at a rate of 24.9 per cent. The high-risk grouptherefore reoffends at more than twice the rate of the median-highgroup.[23] Addressing the factors in s 107IAA(1), Ms Vaili says, (a) that Mr Ngamanuopines that Mr Nepia's urge to commit a relevant offence currently appearswell-managed. In terms of (b), Mr Ngamanu opines that Mr Nepia likely maintains apredilection and proclivity for serious sexual offending, however, this may havedecreased over time and is managed at present. In terms of (c), Mr Ngamanu says thatMr Nepia currently demonstrates the ability to self-regulate. In terms of (d),Mr Ngamanu opines that, while Mr Nepia accepts responsibility for his offending, itis less certain whether he is genuinely remorseful. He appears to understand thegeneral effects of the abuse he inflicted on others, but struggles with the specificconsequences on those he has offended against. Ms Vaili says all of that has to beviewed in light of Mr Nepia's current consensual intimate relationship and theextended supervision order being in force, both of which Corrections say materiallyassist with Mr Nepia's ability to manage.[24] Overall, Ms Vaili says Corrections accepts that Mr Nepia is not at a high riskof committing a relevant sexual offence.Offending/breaches of ESO[25] Mr Nepia has not offended during the five years since he was released fromprison in 2014. He has been living in the community over that five-year period, whicha person is generally able to do under an extended supervision order, but subject toconstant supervision from Probation and to a number of conditions, including aprohibition from use of alcohol and illicit drugs and non-association with children,other than with permission and under supervision. He has not breached any of thoseconditions.[26] It was suggested in written submissions for Corrections that Mr Nepia hadbreached the ESO in 2015. However, the correct position is that a charge of breachwas laid, but Mr Nepia was acquitted.[27] In fact, Mr Nepia's last sexual offending was in 1996, albeit that he was inprison from 2004 to 2014. His only offending since 1996 was for breach of releaseconditions in August 2011 and January 2013, which while serious, related to his beingin the company of children rather than offending against them.Managing in the community[28] Mr Nepia has managed in the community and that is despite inadequateassistance at least for periods since his release. His counsel explains that he and hiswife have had to live in very difficult conditions on a number of occasions, includingat a camping ground. They have been homeless for over 10 months of the period sincerelease. Again, this is accepted by Corrections. This has arisen because Mr Nepia hasbeen unable to find accommodation that satisfies the probation officer (including notnear schools or playgrounds). As Ms Beveridge points out, Mr Nepia has managedwithout the resources that would be available to people from more stable, financiallysecure backgrounds.Support from people[29] Mr Nepia has been greatly assisted by his wife. She was present in Court forthe hearing, as were some other family members and friends. Mr Nepia has no contactwith some family members. He and his wife have been in a relationship now forapproximately six years and married for the last three. Corrections consider she playsan important part in supporting him. They express concern, as Kós J did in 2014,around what would happen if she were not there in terms of Mr Nepia's proclivity tooffend. However, there is no suggestion the relationship is in peril and, in any event,there is sufficient other evidence to support Mr Nepia's application. I note that themarriage has to date survived ill-health, homelessness and the restrictions of livingunder the ESO regime.[30] In addition to his wife's support, Mr Nepia is fortunate to have the support ofothers, including his daughter, who was also present in Court, and a registeredcounselling psychologist, Mr Fry, whom he sees regularly. Mr Nepia organised thatcounselling, not Corrections. Mr Nepia also has assistance from People's Project andthe Salvation Army, both of whom do very good work in Hamilton with homelesspeople and sexual offenders.[31] It seems, viewed overall, that Mr Nepia has not in fact had the support someonein his position needs from Corrections, which suggests the ESO regime may not havebeen a big factor in his ability to manage since release.Other factors[32] I am also influenced by the fact that Mr Nepia volunteered further offendingwhile he was in prison and was considered even back then to be remorseful. He wastold that to rehabilitate fully he had to take responsibility and he did. He was offendedagainst as a young person. He offended against others, causing them the same or worseharm than was done to him. He says he recognises that he must do everything he canto break the chain of offending.[33] I am also influenced by the fact that Mr Nepia is now 55 and, as bothpsychologists have noted, age is a relevant factor in recidivism of sexual offendingagainst children, in inverse proportion.[34] There was concern at the time of the ESO that Mr Nepia did not understandthat he could not be with children without full adult supervision, that reflecting a lackof understanding on his part of what was required if he were to be unsupervised in thecommunity. That was reflected in his breaches of parole conditions prior to the ESO.He says he now entirely accepts the need to have two adults present.[35] One of the conditions attached to the ESO has been that Mr Nepia was requiredto attend the Relapse Prevention Group once a month. He has done that over the lastfive years and wishes to continue to attend, even with his ESO cancelled. Ms Vailihas indicated that may not be possible. I sincerely hope that it is, or somethingequivalent. I find it inconceivable that, on the one hand Corrections opposescancellation of the ESO and on the other, would not make attendance at the RelapsePrevention Group available to Mr Nepia if the ESO were cancelled.[36] I am advised that Mr Nepia continues to seek support from the various groupsI noted earlier.[37] In short, he has shown the ability to cope and to seek assistance to enable himto cope.[38] There is greater protection for the community under an ESO than without one,not the least because a mere breach of terms can lead to imprisonment. However,Ms Beveridge emphasises that Mr Nepia knows imprisonment would be imposedupon any conviction, whether or not the ESO is in place.[39] I emphasise the need for constant vigilance on Mr Nepia's part and on the partof everyone involved, including his wife, his adult children and any other whānau orfriends who may have children come into contact with him.[40] I also emphasise the need for him to be provided with comprehensive supportfrom the community, including either the Department of Corrections or Ministry ofJustice.Conclusion[41] For all of the above reasons, and the conclusions set out earlier, I make an ordercancelling the extended supervision order that was imposed on 25 June 2014.------------------------------------------------------Hinton J