WILSON v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2013] NZSC 78

WILSON v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2013] NZSC 78 [20August 2013]IN THE SUPREME COURT OF NEW ZEALANDSC 52/2013[2013] NZSC 78BETWEEN STEWART MURRAY WILSONApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentCourt: McGrath, William Young and Glazebrook JJCounsel: A McKenzie for ApplicantJ E Mildenhall for RespondentJudgment: 20 August 2013JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] Mr Wilson was convicted in 1996 of a range of sexual and violent offendingagainst a number of women and girls. The offending took place over some 25 years.In total he was sentenced to 21 years imprisonment.[2] Mr Wilson was released from prison on special conditions on 31 August 2012.1Prior to Mr Wilson's release from prison, the Chief Executive of the Department ofCorrections applied2 to the High Court at Christchurch for an extended supervision1 He was, however, recalled to prison on 10 April 2013.2 Under Parole Act 2002, s 107F.order (ESO) to be imposed for a period of 10 years from Mr Wilson's statutory releasedate, 1 September 2015.3[3] The ESO application was granted by Lang J in a judgment of 13 July 2012.4Lang J accepted the evidence of the health assessor, Dr Freeman-Brown, thatMr Wilson was indiscriminate in his offending and that therefore both adult and youngfemales would be at risk from him in the future.[4] The Judge considered the likelihood of any change occurring before the expiryof Mr Wilson's release conditions and concluded that Mr Wilson would remain at riskof offending against young females well beyond the expiry of his release conditions.Nor did he consider that the manner in which Mr Wilson complied with his releaseconditions would have any effect on the duration of the order. The Judge noted that,since his conviction, Mr Wilson had consistently denied his sexual offending andrefused to undertake treatment to address that offending.[5] Mr Wilson's appeal to the Court of Appeal was dismissed in a judgmentreleased of 9 May 2013.5 In that Court, Mr Wilson had submitted that thedetermination of the application was premature given the delayed implementation dateand there was not sufficient likelihood that he would commit a relevant specifiedoffence after his statutory release date.[6] Further, the Court doubted it had jurisdiction to hear an appeal against a refusalto adjourn the hearing of an application for an ESO.6 In any event, the Court said itsfocus in an appeal against the making of an ESO is whether it was rightly made.7 TheCourt held that there was no doubt that the requisite test of whether Mr Wilson waslikely to commit a relevant specified offence after his release date was met.8Accordingly, the appeal was dismissed.3 The 2015 statutory release date results from a three-year cumulative sentence imposed for thewilful ill-treatment of a child.4 Chief Executive of the Department of Corrections v Wilson [2012] NZHC 1634 (Wilson HC).5 Wilson v Chief Executive of the Department of Corrections [2013] NZCA 144 (Wilson CA).6 Wilson CA at [17].7 Wilson CA at [24].8 Wilson CA at [40].[7] Mr Wilson seeks leave to appeal to this Court, advancing essentially the sametwo grounds as before the Court of Appeal. With regard to the first ground, he submitsthat other sufficient means of protection continued until 1 September 2015 and thecourts below erred in imposing a retrospective penalty prior to it being required as aremedy of last resort.[8] As to the first ground, Lang J expressly considered the delay in theimplementation of the ESO and whether that affected either the risk or the length ofthe ESO. Mr Wilson has not advanced anything in his leave application to suggestthat Lang J's assessment of that issue was erroneous. In any event, if there is a changeof circumstances, Mr Wilson may (even if the ESO has not come into force) apply fordischarge of the order.9[9] As to whether the requirements for an ESO to be imposed are met, both Lang Jand the Court of Appeal applied standard legal principles to the facts of this particularcase. There is no point of public importance and nothing has been put forward byMr Wilson to suggest that there is any risk of a miscarriage of justice.[10] The application for leave is dismissed.Solicitors:Crown Law for Respondent9 See Parole Act 2002, s 107O(1).