DEPT OF CORRECTIONS v PALMER [2022] NZHC 137

DEPT OF CORRECTIONS v PALMER [2022] NZHC 137 [4 February 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2021-412-000033[2022] NZHC 137THE CHIEF EXECUTIVE,DEPARTMENT OF CORRECTIONS, WELLINGTONvTRACY WILLIAM PALMERHearing: 4 February 2022Appearances: C E R Power for the ApplicantR G R Eagles for the RespondentJudgment: 4 February 2022ORAL JUDGMENT OF NATION J[1] Mr Palmer is currently serving a sentence of imprisonment for serious sexualoffending. His statutory release date is 5 February 2022. His release conditions willend on 4 August 2022.[2] The Chief Executive of the Department of Corrections applied for an extendedsupervision order (ESO) under s 107F of the Parole Act 2002 (the Act) and for MrPalmer to be subject to that order for a period of five years.[3] The application was supported by evidence from a clinical psychologist for theDepartment of Corrections, Mr Berry. The Court also received evidence from anexperienced psychologist and forensic specialist, Mr Riley.[4] The two psychologists conferred. On 10 December 2021 they jointly signed adocument confirming they agreed that, if Mr Palmer was subject to an ESO post-release from prison and had been compliant for three years, it would be reasonable toend the ESO order at that time on the basis of a recalculated estimate of risk. Withthat agreement, the Chief Executive accepted that a three year term would be sufficientif an ESO order was imposed. The respondent, Mr Palmer, with the benefit of counsel,agreed to the making of an ESO on that basis if it was for a three year term.[5] Having read all the papers and given the matter due consideration, I indicatedto counsel that the outcome agreed to by the parties would be appropriate.[6] The hearing of the application proceeded on 4 February 2022 in the High Courtat Dunedin. Mr Palmer was present in Court for the hearing. Because of COVID-19restrictions, counsel appeared remotely. It was not necessary for them to presentfurther submissions.[7] The parties accept that Mr Palmer is an eligible offender within the meaningof s 107C(1)(a) of the Act because he has not ceased, since his conviction for a relevantoffence, to be subject to release conditions.[8] Mr Palmer has been convicted of relevant sexual offences. On 20 December2011, he was sentenced in the High Court at Invercargill on:(a) five charges of unlawful sexual connection with a male aged 12 to 16,pursuant to ss 128 and 128B of the Crimes Act 1961, maximum penalty14 years' imprisonment;(b) two charges of doing an indecent act with/upon a boy under 12, pursuantto s 140 of the Crimes Act, maximum penalty 10 years' imprisonment;and(c) two charges of doing an indecent act with/upon a boy between 12 and16, pursuant to s 140A of the Crimes Act, maximum penalty seven years'imprisonment.[9] Prior to the relevant offences, Mr Palmer was sentenced in the District Courtat Invercargill on 1 July 2010 in relation to 25 charges:(a) 9 x unlawful sexual connection with a female under 12, pursuant to ss 128and 128B of the Crimes Act, maximum penalty 20 years' imprisonment;(b) 2 x unlawful sexual connection with a male under 12, pursuant to ss 128and 128B of the Crimes Act, maximum penalty 20 years' imprisonment;(c) 9 x indecent act with a boy under 12, pursuant to s 132(3) of the CrimesAct, maximum penalty 10 years' imprisonment; and(d) 5 x indecent act with a girl under 12, pursuant to s 132(3) of the CrimesAct, maximum penalty 10 years' imprisonment.[10] The offending for which Mr Palmer was sentenced in the High Court occurredbetween 1986 and 1993. That offending occurred when Mr Palmer was aged betweenabout 16 and 23. The offending for which Mr Palmer was sentenced in the DistrictCourt was committed between 25 January 2008 and 19 July 2009, when Mr Palmerwas aged between 37 and 39 years of age.[11] The offending involved acts of sexual touching, digital penetration andmasturbation, forcing the victims to engage in sexual touching and performing oralsex. The offending for which Mr Palmer was sentenced in the High Court includedanal sex.[12] The offending for which Mr Palmer was sentenced in the District Courtfollowed on from his guilty pleas to the relevant charges. In the High Court, he wasfound guilty of the relevant charges at trial. Despite his earlier guilty pleas and theverdicts at trial, Mr Palmer now denies all the offending.[13] Given the nature of his offending, it is clear Mr Palmer has displayed an intensedrive, desire or urge to commit relevant sexual offences and he has a predilection orproclivity for serious sexual offending, mainly sexual offending against a child. It isalso clear that, with Mr Palmer's history of poor decision-making, entitled beliefs,impulsivity evident in the offending, and with his denial of the offending, Mr Palmerhas not displayed a capacity to self-regulate his conduct to avoid future offending toan extent that would avoid the need for an ESO. He has not accepted responsibilityfor his offending and thus has not shown remorse for it. Commensurate with that, hedoes not appear to understand or be concerned about the impact of his sexual offendingon actual or potential victims.[14] The psychologists referred to various actuarial tests to assess the level or riskof further serious sexual offending. Mr Berry concluded that, at present, there was a"Level III Average" risk of committing a further relevant sexual offence while in thecommunity.[15] Significant relevant matters as to that level of risk were Mr Palmer's continuingdenial of all the offending, and thus his inability to benefit from or sometimes evenparticipate in programmes for treatment of the psychological factors that coulddecrease the risk of further sexual offending, and support from those within his ownfamily who tended to support him in his denial of the offending.[16] The grounds for the making of an ESO have thus been made out. The ESOmust however be only for such a period as the Court considers necessary.[17] It is significant to the Court and was of significance to the psychologists that,despite his denials of the offending, Mr Palmer has engaged well with sentenceplanning, had developed and understood a safety plan which would reduce the risk ofsexual offending, and had shared that plan with key support people in a whanau hui.[18] While Mr Palmer has not had the opportunity to reoffend while continuing toserve his prison sentences, it is relevant that there were no adverse incidents ormisconduct reports relating to him. He has thus demonstrated that he is able to complywith all the constraints of a prison sentence and there was no evidence of offencereplacement behaviour.[19] Mr Berry's evidence was that denial of sexual offending is not, of itself, a factorthat escalates the risk of reoffending. Mr Riley noted that Mr Palmer's denial of theoffending and his inability to empathise with the victims or express remorse for hisactions "while having strong moral and/or ethical overtones, are not in any wayindicative of heightened sexual offending risk".[20] Mr Palmer is now aged 51. It was accepted by the psychologists that, asoffenders age, they are less likely to reoffend.[21] Mr Riley referred to research literature which indicated that the risk of sexualrecidivism decreases as a function of time spent offence-free in the community.Accepting there is currently a risk of further sexual offending sufficient to warrant themaking of an ESO, Mr Riley said the level of risk would significantly reduce over aperiod of three years if an ESO were to be made for that period.[22] It will be a condition of post-release conditions that Mr Palmer will have toreside at an address approved by the Parole Board. Because of the nature of hisoffending, his name will be on the Child Sex Offender Register. Through that,Corrections and appropriate government departments will have the ability to limit theopportunity for Mr Palmer to come into contact with children where there would be arisk of his further offending.[23] On current evidence, if Mr Palmer proves he can live in the community for thethree years duration of an ESO without offending, it is likely the risk of further serioussexual offending will reduce to a level where there will need not be any further renewalor extension of that order.[24] I am accordingly satisfied that it is appropriate to make an ESO in respect ofMr Palmer and that this order be for a period of three years, to commence on 5February 2022. I make such an order in terms of the draft order filed for the ChiefExecutive.Solicitors:RPB Law, DunedinEagles Eagles & Redpath, Invercargill.