CLARK v DEPARTMENT OF CORRECTIONS [2016] NZCA 119

CLARK v DEPARTMENT OF CORRECTIONS [2016] NZCA 119 [12 April 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA146/2015[2016] NZCA 119BETWEEN RONALD COSMOS CLARKAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 12 February 2016Court: French, Simon France and Ellis JJCounsel: Appellant in PersonM L Wong for RespondentJudgment: 12 April 2016 at 3.00 pmJUDGMENT OF THE COURTA The application for an extension of time in which to bring the appeal is granted.B The appeal against the extended supervision order is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] Mr Clark appeals against a decision of Judge Davis in the Whangarei District Court making him subject to an extended supervision order for a period of seven years.1 Mr Clark contends that unproven material was improperly relied on, that hislawyer inadequately represented him at the hearing, that the health assessor's report1 R v Clark DC Whangarei CRI-2011-088-1499, 11 December 2014.is flawed, that the Judge made factual errors, that the offending (possession of objectionable material) that made him eligible for such an order does not merit the making of an order, and finally that the length of the order is excessive.[2] The appeal was filed out of time. The respondent did not object to an extension of time being granted. We so order.Facts[3] In November 2009 police searched Mr Clark's address. The genesis for thesearch was an investigation that had been conducted into various websites that focus on young boys. Mr Clark's computer was seized and on it were images considered to be objectionable. Twenty-one images were sent to the Office of Film and Literature Classification. The Office deemed 19 to be objectionable. In respect of two images, Mr Clark pleaded guilty to possessing objectionable publications. In respect of the remaining 17 images, Judge Davis convicted Mr Clark of possession of objectionable publications, knowing or having reasonable cause to believe the publications are objectionable.2[4] Mr Clark defended the charges on the basis he did not know, nor did he have reasonable cause to believe, the images were objectionable. The images were not ofactual children, but were digitalised images. The young "boys" were also given afantastical aspect in that some had elf or pixie-like ears. What was also common, however, was that in the images, the boys were all engaged in explicit sex acts, primarily but not exclusively with adult men. Oral sex and anal sex featured prominently, along with bondage and group sex.[5] Unsurprisingly, the defence failed and Mr Clark was sentenced to six months'imprisonment.3[6] Relevant to the application for an extended supervision order was that between 1988 and 1991 Mr Clark had committed numerous sexual offences against2 Films, Videos, and Publications Classification Act 1993, s 131A. New Zealand Police v ClarkDC Whangarei CRI-2011-088-1499, 18 September 2012.3 New Zealand Police v Clark DC Whangarei CRI-2011-088-1499, 20 December 2012.three boys who were friends of his children. That offending involved grooming and then acts of oral sex, masturbation, simulated anal sex and attempted anal intercourse.The extended supervision order application[7] Applications for extended supervision orders are made under s 107F of the Parole Act 2002. Any such application is to be accompanied by a report from a health assessor, which is required to address whether the offender displays particular traits, and whether he or she presents a high risk of further sexual offending.[8] Section 107I(2) authorises a sentencing court to make an extended supervision order if satisfied: having considered the matters addressed in the health assessor's report as set out in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of serious sexual or violent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in future commit a relevant sexual offence:(ii) there is a very high risk that the offender will in future commit a relevant violent offence.[9] The present application was supported by a report from a clinical psychologist, Ms Marilyn Farmer. As is usual, the report traversed Mr Clark'soffending history, considered other information provided about him, reviewed what previous assistance and treatment Mr Clark had been proffered, recorded the results of various risk assessment tools, and drew conclusions in light of the statutory test.[10] Concerning the other information provided to the psychologist, s 107F(3) specifically allows a report writer to have regard to information about other relevant conduct, notwithstanding the alleged conduct has not been the subject of charges. Here, two items of information about Mr Clark were provided to Ms Farmer:(a) Police advised that during a separate search in 2008, they located on Mr Clark's computer images of pubescent and pre-pubescent children in sexual poses, and doing sexual acts. It was said charges had not been possible as the computer analysis had taken too long, meaning the statutory time limit had expired.(b) Police advised that living at Mr Clark's house at various recent timeshad been two men who were also convicted sexual offenders. It was said one of those men had at various times taken children back to Mr Clark's house, and the other had been found with numerous objectionable images on his computer and phone. Further, a third convicted sex offender had proffered Mr Clark's address to ProbationService as a place he could stay.[11] In relation to previous treatment that had been proffered to Mr Clark, the report first noted that Mr Clark had completed half of the Karaka Sexual Offender Intervention Programme. His progress there was limited because of his entrenched beliefs on the appropriateness of sex with children. Mr Clark did, however, subsequently complete the 33-week Te Piriti programme. However, the course assessors considered his understanding superficial and that he lacked the insight indicative of someone truly accepting personal responsibility.[12] Mr Clark informed Ms Farmer that possession of pornographic images had not been discussed on the course and he was unaware he should avoid them. Ms Farmer considered this observation by Mr Clark illustrated he has limited ability to apply any understanding he has to new contexts. Mr Clark had been advised during the course that engaging in deviant fantasy and arousal was high risk. However, seemingly, he was not able to equate this general proposition to the specific context of possessing such explicit images. Ms Farmer saw this incapacity as a further risk factor.[13] Finally, on potential to re-offend, Ms Farmer applied several risk assessment tools. Bringing the various results together led her to an assessment of medium high risk, which would increase to high risk if contact with other offenders wasmaintained. Mr Clark was assessed as having a poor ability to control his sexual impulses. His belief that his proclivities are not amenable to change, and his use of websites that normalise attraction to children, were noted as other matters of concern.Judgment under appeal[14] Judge Davis identified two factors as particularly influencing his decision to grant the application.4 The first was Mr Clark's entrenched views about sexualconduct with young boys. The second was his willingness to put himself in risk situations, as evidenced by his contact with other offenders.[15] When determining for what term the order should be, the Judge specifically had regard to the one-year period Mr Clark had spent on interim conditions since the application was filed.5 His Honour also considered other decisions and the terms imposed in those.6 Finally, weight was given to the nature of the conduct that triggered the application, namely possession of objectionable materials depicting digital rather than actual children.7 This factor meant a term less than that imposed in some other cases was appropriate. Balancing these three matters, the Judge imposed a term of seven years.The appeal[16] As noted earlier, Mr Clark raises several specific issues, which we will address. However, the reality is that the core proposition advanced on appeal by Mr Clark is that he is correct in his views about how to manage risk, and the health assessor and the Judge were accordingly wrong in their assessments. Mr Clark considers his proclivity is innate and cannot be changed. All that he can do is control it by recognising the law prohibits it being given effect to, and respecting that law.4 R v Clark, above n 1, at [44]–[46].5 At [56].6 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352; Chief Executive of the Department of Corrections v Williamson DC Whangarei CRI-2010-088-4407, 28 September 2012.7 R v Clark, above n 1, at [57].[17] Mr Clark submits he has done this for more than 20 years, and that possession of objectionable materials that do not depict sex acts with real people is not a basis on which to doubt his ability to control his urges. Indeed, it should be seen as a positive in that it provides a form of release. Mr Clark also disputes the classification as objectionable of what he calls cartoons and caricatures, and disagrees that possession of them is indicative of any risk.[18] The difficulty for Mr Clark is that the professional assessment is to the contrary. Further, as will be explained, there was a second assessment provided by an expert instructed by Mr Clark's counsel. That health assessor reached the sameconclusions as Ms Farmer. Accordingly, there was no material independent of Mr Clark that proffered a contrary view to that of Ms Farmer. It was therefore somewhat inevitable that the order would properly be made. With those general comments we turn to the specific grounds.Reliance on extrinsic material[19] Mr Clark objects to reliance being placed on material outlining the two items of further conduct described above at [10]. There are three strands to his objection: the material is not accurate, it should not have been relied on by the psychologist, and the police officer who provided it both to the psychologist and to the Court by way of a handed up brief should have been cross-examined.[20] Concerning the accuracy of the information, Mr Clark gave evidence at the application hearing and was given the opportunity to explain both his contact with the other men and what he knew of their activities, and the images on his computer. There are no specific findings of fact made by the Judge in relation to these topics. However, he does detail the evidence in a manner suggestive of its accuracy and does rely on it. That may reflect the reality that Mr Clark had not really disputed the accuracy of either point. He acknowledged the images were on his computer but claimed not to be responsible for their presence. He accepted he was in contact with the men but wanted to emphasise his lack of knowledge of what the men were doing. He accepted he knew the men were sex offenders as, indeed, he had met them on courses such as Te Piriti, but he was content with the protection offered by imposinga rule that they were not to do anything illicit or illegal that would cause trouble for Mr Clark. Mr Clark did not accept that contact with these men was a risk factor.[21] The issue illustrates a point made earlier. Mr Clark believes he is right that it is acceptable to have contact with like-minded people and he cannot be told otherwise. His response is not to say he was unaware contact of this type was a risk factor and he will modify his conduct. Instead, it is to dispute that contact is a problem. If, however, one does not agree with Mr Clark on this, as the professionals do not, then the explanations he gives about the extent of the contact do not address the risk being identified or reduce it.[22] Turning to his other criticisms, as noted, s 107F(3) of the Act expressly allows the health professional to rely on extrinsic material. Finally, we agree with the Crown that no issue arises from the failure of defence counsel to challenge the police officer. The basic facts the officer provided were not disputed. Rather, Mr Clark wished to explain the context and he was given that opportunity.Adequacy of legal representation[23] There is no merit in this ground. Mr Clark's lawyer filed an affidavit for thepurpose of the appeal and was not cross-examined. The affidavit was somewhat limited because, despite requests for access, the lawyer did not have a copy of the file, which had been returned to Mr Clark.[24] It is plain counsel did what could be done. She was constrained by the fact a second expert had provided an opinion reaching the same conclusions as Ms Farmer.Counsel's questioning of Ms Farmer shows she was familiar with the case, put to the psychologist several matters that Mr Clark had raised and which he does so again on the appeal, and led Mr Clark's own evidence appropriately. The key matters incontest were raised and Mr Clark was given the opportunity to put forward his viewpoint on them.[25] Mr Clark is critical of counsel's choice of expert for obtaining a secondopinion, namely Dr Susan Blackwell. Mr Clark has discovered since the hearing that Dr Blackwell is regularly briefed by the Crown to give expert evidence oncounter-intuitive behaviour in cases involving allegations of sexual offending. Whilst that is so, Dr Blackwell is a clinical psychologist of considerable experience. Her instructions were to review Ms Farmer's report and to provide her ownindependent evaluation of Mr Clark. There is no basis to impugn her independence or capacity to prepare the report.Ms Farmer's evidence[26] Mr Clark disputes much of Ms Farmer's factual reporting of their meetingsand comments attributed to him. He contends either that he did not say these things, or they have been misinterpreted. Some of these matters were raised with Ms Farmer in cross-examination. She remained firm that her recording of the conversations was accurate. It is not a matter that can be taken further on appeal. Mr Clark says one thing; Ms Farmer says the other. This Court is not in a position to resolve the contest. However, in relation to the allegation that Ms Farmer misunderstood or misreported Mr Clark's viewpoint, we have not seen anything tosupport that. Whilst Mr Clark may prefer a different gloss or consider Ms Farmer has missed the subtlety of distinctions he draws, the report is correct in its essential summary of his position. Further, the objective evidence, such as the websites he frequents, the images he possessed and the company he keeps, is consistent with Ms Farmer's description of Mr Clark's viewpoint.Bias/conspiracy[27] Mr Clark contends his situation is the product of a conspiracy by police in which the Judge has been complicit. The conspiracy is manifested first by the fact of"bizarre" charges that allege possession of caricatures to be an offence, and then bythe fact it was Judge Davis allocated to hear the extended supervision order application some months after finding Mr Clark guilty on the so-called bizarre charges. The actual sentence Judge Davis imposed is submitted to be further evidence of the conspiracy in that a sentence of imprisonment was required in order to make Mr Clark eligible for an extended supervision order.[28] No comment is needed on this submission. The charges were proven andwere based on the Classification Office's assessment that the images areobjectionable. There can be no concern, and indeed it might be thought to be sensible, if the Judge most familiar with the triggering offending hears the application. A sentence of imprisonment is not unexpected for this offending, and was upheld on appeal.8 Mr Clark did not appeal his conviction.The need for an extended supervision order[29] This ground has already been traversed. The evidence before the Courtsupported the imposition of an order. The health assessor's report was clear on therisk posed. Mr Clark gave evidence and his evidence did not persuade the District Court otherwise. There was no contrary professional opinion, and it is now known this was not due to a lack of effort to obtain one.[30] We also consider the statutory test was made out. Unless one rejects the professional advice that possession of images such as these is a manifestation of deviant fantasy and arousal that points to the continued existence of risk, the case for an extended supervision order is irresistible. It can be noted in this regard that the legislation itself reflects the professional advice in that it includes possession of such material as a relevant offence.9The length of the term[31] The primary focus here is that Mr Clark should have received credit for the year spent on conditions prior to the application being determined. We agree, as did Judge Davis, who expressly took this into account when fixing the seven year term (the maximum available being ten years).10Conclusion[32] The various specific challenges made by Mr Clark do not raise concern about the correctness of subjecting him to an extended supervision order. The imagesunderlying the convictions involved extremely troubling content with "boys" beingsubjected to hard-core sexual activity. Mr Clark displayed no insight into the8 Clark v New Zealand Police [2013] NZHC 141.9 Parole Act 2002, s 107B(3).10 See s 107I(4) of the Parole Act.wrongness of these images, and continues to defend his right to possess them. It is not surprising, given his previous abuse of several boys, albeit many years ago, that the Court concluded he poses a risk that justifies the imposition of controls through an extended supervision order.Outcome[33] The application for an extension of time in which to bring the appeal is granted.[34] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent