TURNBULL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZCA 409 [11 September 2020]

TURNBULL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZCA 409[11 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA265/2020[2020] NZCA 409BETWEEN SHANNON TURNBULLAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 3 September 2020Court: Goddard, Ellis and Dunningham JJCounsel: K F Preston and V E Thursby for AppellantC Ure for RespondentJudgment: 11 September 2020 at 11.00 amJUDGMENT OF THE COURTA The appeal is allowed.B The extended supervision order made in respect of Mr Turnbull on24 February 2020 is quashed.C The question of whether an extended supervision order should be made isremitted to the District Court for reconsideration.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] The appellant, Mr Turnbull, was convicted on three charges of indecent assaulton a child,1 relating to two nine-year-old children.21 Crimes Act 1961, s 132(3).2 R v Turnbull [2018] NZDC 5299.[2] He was sentenced to two years and one month's imprisonment.The application for an extended supervision order[3] Prior to Mr Turnbull's release, the Chief Executive of the Department ofCorrections (Chief Executive) applied for an extended supervision order (ESO) inrespect of Mr Turnbull, under s 107F of the Parole Act 2002. The Chief Executivesought that the ESO be made for a term of five years, subject to the standardconditions.[4] The application came before Judge Phillips on 24 February 2020.While Mr Turnbull consulted with a duty solicitor, he declined to have any legalrepresentation at the hearing. He said he had read the application and the attachedreport from a health assessor, and he consented to the order being made.[5] The Judge issued his decision in the form of a minute and briefly addressed thegrounds for making the order, saying that:3(a) Mr Turnbull had a longstanding history of sexual pre-occupation and"deviant sexual arousal towards children".(b) Mr Turnbull had significant difficulties managing his behaviour andemotional state appropriately.(c) Mr Turnbull's difficulties with his mental health, "somewhat reducedcognitive functioning", and social isolation, all impacted upon hisability to cope in a community setting.(d) External monitoring management would be important because therewas a "high risk that [Mr Turnbull] could commit further relevantsexual offending".The Judge then made the order sought for a five-year term on the standard conditions.3 Department of Corrections v Turnbull DC Wellington CRI-2020-085-374, 24 February 2020at [7].The appeal[6] The appeal is advanced on the basis that the District Court erred in granting theapplication. Mr Preston argues there is a statutory test which must be met beforefinding that there is a high risk of Mr Turnbull committing a relevant sexual offencein the future. In this case, it was not met. In particular, Mr Turnbull does not meet thestatutory criteria that he:4(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.[7] Mr Preston says that, when the report of the health assessor is considered, notall criteria in s 107IAA of the Parole Act are met. The report contains evidence thatMr Turnbull displays both an acceptance of responsibility and remorse, andan understanding of, or concern about, the impact of his offending on victims. In short,Mr Preston says the District Court incorrectly granted the application when the criteriain s 107IAA(1) were not fulfilled and an ESO should not have been made.The respondent's position[8] We do not outline the careful arguments of Mr Turnbull's counsel in any furtherdetail because Ms Ure, counsel for the respondent, accepts that the Judge simply didnot address the statutory criteria in making his decision. She also accepts that thedecision did not provide a clear explanation to Mr Turnbull of the reasons for theimposition of the ESO. In these circumstances the Crown concedes that the appealshould be allowed and the ESO quashed.[9] Ms Ure submits that the appropriate course of action upon the quashing of theESO is that the proceeding be remitted to the District Court for reconsideration.She points out that although Mr Turnbull is now released from prison and his releaseconditions expired on 1 September 2020, the application for the ESO was filed well4 Parole Act 2002, s 107IAA(1)(d).before that date, so the District Court still has jurisdiction to make such an order,despite Mr Turnbull no longer being an eligible offender as defined.5[10] We questioned Ms Ure on whether there was any concern about the gapbetween the decision being set aside and the matter being reconsidered in theDistrict Court. No specific concerns were identified, and she confirmed there was noneed to defer our decision until a District Court hearing date was secured.Decision[11] It is important that a decision imposing an ESO addresses the statutory criteriafor making such an order, and that there is a clear explanation to the offender of thereasons for imposing an ESO.6 While a Judge's decision can be relatively brief whenan application is unopposed, the statutory criteria must still be addressed. In thepresent case, we do not have the benefit of the Judge's reasoning on this issue and weaccept it is arguable that the statutory criteria are not met. In these circumstances theCrown was right to concede that the appeal should be allowed and the decision setaside. For these reasons, we make the following orders:(a) The appeal is allowed.(b) The extended supervision order made in respect of Mr Turnbull on24 February 2020 is quashed.(c) The question of whether an extended supervision order should be madeis remitted to the District Court for reconsideration.Solicitors:Crown Law Office, Wellington for Respondent5 Pursuant to s 107I(3) of the Parole Act.6 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [56].