THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v DANIEL [2017] NZHC 155 [14 February 2017]

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v DANIEL [2017] NZHC 155 [14 February 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2016-409-151[2017] NZHC 155IN THE MATTER of an application for an ExtendedSupervision OrderBETWEEN THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND TRAVELLER DANIELRespondentHearing: 3 February 2017Appearances: P A Currie for ApplicantM Starling for RespondentJudgment: 14 February 2017JUDGMENT OF NICHOLAS DAVIDSON JThe application for Extended Supervision Order[1] The respondent, Mr Daniel, is serving a sentence of five years imprisonment for unlawful sexual connection with a female under 12 years.[2] He has a long criminal history. Three of his convictions are for violence and four for sexual offences including indecent assault of a female under 12, abduction of a female over 16, rape of a female over 16, and unlawful sexual connection with a female under 12. He has multiple other convictions. He has received nine sentences of imprisonment and during the 11 year period from July 2005 to October 2016 he has spent almost nine years in prison. The longest time he has been out of prison is reported to have been one year.[3] The Chief Executive of the Department of Corrections (the Chief Executive) has applied for an Extended Supervision Order (ESO) under the Parole Act 2002 (the Act), to have effect for 10 years from the end of Mr Daniel's current sentence.[4] There is no application that he be subject to intensive monitoring, unlike a number of other cases.[5] The application for an ESO is not opposed by the respondent, indeed he consents to an order as sought, and Mr Starling, his counsel, has explained to the Court that this is not to gain any perceived advantage before the Parole Board, but rather it reflects the facts which apply to Mr Daniel, and the high risk of his further and relevant sexual offending.The statutory framework[6] Applications for ESOs are brought under s 107F of the Act.[7] As Mr Daniel is serving a five year sentence for unlawful sexual connection with a female under 12, a relevant sexual offence under s 107B, he is an "eligible offender" within the meaning of s 107C of the Act. The application was filed on 19 December 2016, during Mr Daniel's imprisonment. His release date is 8 October 2017.[8] A report from at least one qualified health assessor must accompany an application for an ESO.1 The Chief Executive has provided a report dated 25 November 2016 from Ms Fran Vertue, a registered clinical psychologist.[9] The Court must be satisfied of a number of matters directed by the Act, including that Mr Daniel poses a high risk of committing a relevant sexual offence following release. Although the respondent has consented to this application, this Court must still be satisfied that the various elements necessary to make the order have been established to the requisite level.1 Parole Act 2002, s 107F(2).[10] For such an application, the meaning of "is satisfied" has been adopted fromR v Leitch, which discussed the meaning of that term in the context of applications for preventive detention:2The need to be satisfied calls for the exercise of judgment by the sentencingcourtthe phrase "is satisfied" means simply "makes up its mind" and isindicative of a state where the court on the evidence comes to a judicial decision. There is no need or justification for adding any adverbial qualification.Statutory criteria[11] Section 107IAA(1) of the Act sets out the threshold criteria of which a court must be satisfied, before it can make a finding that the respondent poses the necessary high risk of committing a relevant sexual offence:(1) A court may determine that there is a high risk that an eligible offender will commit a relevant sexual offence only if it is satisfied that the offender—(a) displays an intense drive, desire, or urge to commit a relevant sexual offence; 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 past offending:(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.[12] If the Court is satisfied that these criteria are met, it may go on to consider theoverarching question in s 107I(2), whether Mr Daniel "has, or has had, a pervasive pattern of serious sexualoffending", and whether there is a "high risk that theoffender will in future commit a relevant sexual offence".[13] The focus is on the evidence of past behaviour, in the sense that where a relevant trait or characteristic is present, the inference is that it remains so, even if2 Chief Executive of Department of Corrections v McIntosh HC Christchurch CRI-2004-409-162, 8 December 2004 at [21], citing R v Leitch [1998] 1 NZLR 420 (CA) at 428.apparently latent, unless there is something to suggest that it no longer subsists.3 As directed by s107F(2A), Ms Vertue addresses all these factors in her report.The s 107IAA(1) factors(a) Intense drive, desire, or urge to commit a relevant sexual offence[14] Ms Vertue records that:Mr Daniel's sexual offending has occurred across a significant period of timewith a wide range of victim types, with no evidence that his risk has decreased as he has aged. As evidenced by his persistence with his sexual behaviour despite the victims' protestations, his desire to engage in sexual behaviour overwhelmed any notions of the rights of others, or, as evidenced by the public setting of one of his sexual assaults and the close proximity ofthe child's mother during another, any fear of being detected. The fact that Mr Daniel re-offended subsequent to sanctions for sexual offending suggests that his desire to engage in sexual offending has not abated throughpunishment. In the writer's opinion, Mr Daniel has displayed an intensedrive to commit a relevant sexual offence.[15] I am satisfied that this characteristic is present in Mr Daniel's case.(b) Predilection or proclivity for serious sexual offending[16] Ms Vertue reports that:Mr Daniel has been convicted of four counts of sexual offending between 2002 and 2011. The first conviction in 2002 for his indecent assault on an adult female earned fines, which did not serve to deter him, and he sexually re-offended in 2004. The second and third convictions earned prison sentences served concurrently, but did not prevent the sexual assault on a child in 2011, at a time when he was also engaged in a reportedly activesexual relationship with the child's mother. This history suggests that hisproclivity for serious offending has been demonstrated across settings, across time, with intimate and unknown females, and even when he is involved in a normative sexual relationship. In the writer's opinion,Mr Daniel has demonstrated a predilection for serious sexual offending.[17] I accept Ms Vertue's conclusion that Mr Daniel demonstrates the requisite predilection or proclivity towards serious sexual offending.3 Chief Executive of Department of Corrections v Alinizi [2016] NZCA 458, [2016] NZAR 1313 at [36].(c) Limited self-regulatory capacity[18] Ms Vertue comments:Mr Daniel's sexual history suggests that his adolescence was marked bysexual excesses, often linked to impulsive and opportunistic sexual behaviour. In his adulthood, his surprise at being confronted by his offending each time speaks to his lack of foresight or thought before he acts sexually insituations where consent is not evident. Mr Daniel's last known sexual offence was against a child in 2011, and he has been incarcerated since that time, reducing significantly his opportunities for sexual offending. In addition, his medication regime has been carefully managed, reducing the risk factors associated with his psychotic symptoms, including his impulsivity. However, it is also noted that he has not demonstrated parallel sexual offending behaviour while in prison, suggesting that he is able tomanage his behaviour in a controlled environment. In the writer's opinion,Mr Daniel's capacity to self-regulate his sexual behaviour is strongly associated with his psychotic symptoms, his beliefs about his right to forego consideration of the consequences for the other person before he acts sexually, his substance abuse as a disinhibitor of his behaviour, and the external control structures in place in his daily routines. This raises concerns about the very limited internal controls he has with which to regulate his behaviour.[19] I am satisfied on the evidence that Mr Daniel has limited self-regulatory capacity.(d)(i) Acceptance of responsibility and remorse for past offending[20] Ms Vertue addresses this:Before Mr Daniel engaged in the [Kia Marama Special Treatment Unit], he was reported to demonstrate little acceptance of remorse or responsibility for his sexual offending, apart from some embarrassment at being convicted of sexual offending. When asked about it, he generally expressed his surprise that his behaviour was considered to be inappropriate, and minimised his role in the offending by suggesting that his victims (or others) were responsible for the offending, or that his psychotic illness was to blame. Over the course of the [Kia Marama Special Treatment Unit], he was reported to have increased his capacity to understand that his offending was the result of decisions he had made, and therefore, his responsibility. He also increased his capacity to understand his offence process to some extent. His current expressions of responsibility and remorse sound somewhat rehearsed, and, in the writers opinion, Mr Daniel's capacity to acceptresponsibility for his offending, to understand that his offending was criminal in its nature, and to regret what he has done is still fairly rudimentary.[21] The evidence discloses some acceptance of responsibility on the part of Mr Daniel. However, it is clear from his pattern of offending that this has had little effect on his impulsiveness to sexually offend in the moment. In sentencing for Mr Daniel's index offending, he presented as somewhat remorseful. However, in thelight of Ms Vertue's assessment that any progress towards acceptance of responsibility is rudimentary, I consider this characteristic to be met. This is a strong warning to the Court that there must be a true mind shift in recognition of harm done and demonstrating a real transfer of responsibility to the offender, not the victim. This finding and observation extends to the next consideration.(d)(ii) Absence of understanding or concern for the impact of offending[22] Ms Vertue comments:There are a number of historical reports about Mr Daniel's apparent lack ofunderstanding or concern about the impact that his offending might have had on his victims, given his lack of insight into his offending. However, during the [Kia Marama Special Treatment Unit] programme, he is reported to have improved his ability to take the perspective of his victims. When asked more recently about the impact his offending may have had on his victims, he was able to generate a reasonable depth of understanding about the impacts thathis sexual assaults may have had on all three of his victims. In the writer'sopinion, Mr Daniel has only recently begun to develop an appreciation for the sequelae of his offending.[23] It is clear that Mr Daniel does not completely lack understanding or concern about the impact of his offending. However, the proper interpretation is not, in my view, of an absolute lack of concern. The issue arose in Chief Executive of the Department of Corrections v Douglas, in the context of applications for an ESO and a Public Protection Order and the statutory language "absence of understanding or concern", where the court concluded that this:4means that any understanding or concern is so distorted, superficial and self orientated, that it marries with the clear purpose of the legislation, that the checks and balances inherent in the combined and individual characteristics in s 13(2) [of the Public Safety (Public Protection Orders) Act 2014] are not operative to negate the risks which derive from those characteristics.4 Chief Executive of Department of Corrections v Douglas [2016] NZHC 3184 at [89] (emphasis original).[24] That observation was made in the context of a statutory framework which calls for similar characteristics to be present to a degree higher than contemplated for ESO applications under the Parole Act.[25] I consider that whilst Mr Daniel has developed, in the course of treatment, some degree of appreciation of the impact of his offending, it remains under-developed and something of a "first step". I therefore consider, in the light of the protective purpose of the legislation, that this characteristic is present to thenecessary degree in Mr Daniel's case.Pervasive pattern of serious sexual offending[26] Mr Daniel's history has been canvassed above. There is a consistency to his offending since his first sexual offence in 2003, when he was 21 years old. This involved a sexual street assault on a woman unknown to him. Two years later, Mr Daniel raped a woman, who was unknown to him. Mr Daniel has been incarcerated for much of the time since then, with the longest period spent out of prison being approximately one year.[27] Mr Daniel's index offending for which he is imprisoned occurred in or about 2011 or 2012. The victim was a young girl known to Mr Daniel. He was sentenced by Simon France J to five years imprisonment with a minimum non-parole period of two and a half years.5 Submissions for preventive detention were made, although that was not granted. Simon France J considered that "[Mr Daniel's] pattern of offending is troubling but does not suggest inevitability".6 He did not consider thatMr Daniel's offending had "escalated", but neither did he consider it to havedecreased.[28] I concur with Simon France J that Mr Daniel's record is troubling, including its consistency. This is not to say that things might not improve with sustained proper treatment, which the present application before the Court would help secure.5 R v Daniel [2014] NZHC 326.6 At [9(a)].[29] The victims of Mr Daniel's sexual offending include women over 16, and some much younger. As Ms Vertue notes, protective factors, such as the presence ofa normal sexual relationship, have done little to curb Mr Daniel's offending.His adolescence was marked by "sexual excesses, often linked to impulsive andopportunistic sexual behaviour". There are factors in his history which are relevant to his offending and the prospect of such, including various indicators of mental disturbance and psychopathy. Ms Vertue reports:Mr Daniel's sexual offending occurred in the context of distorted beliefs and maladaptive experiences about sexual relationships built over many years. His unstable childhood attachments and his experiences of childhood sexual abuse may have resulted in a high level of sexual preoccupation and the use of sexual behaviours to generate positive emotions or cope with negative emotions. In addition, the childhood abuse will have normalised for him, to some extent, sexual behaviour between adults and children. The negative attitudes towards women demonstrated by his peer group during adolescence entrenched his belief that he was entitled to have sex with any female he chose, and he engaged in sexual excesses, often linked to impulsive and opportunistic sexual behaviour. The onset of schizophrenic symptoms with some delusional beliefs about his sexual appeal served to escalate this belief. His early experiences and his illness have interrupted his capacity to make and maintain intimate relationships, leaving him feeling chronically lonely and eager to engage in fleeting sexual experiences to ease his distress.[30] I am satisfied that Mr Daniel's history discloses a pervasive pattern of serioussexual offending.High risk of future sexual offending[31] Ms Vertue addresses Mr Daniel's risk in terms of static and dynamic risk factors, and with reference to two risk assessment tools: the Automated Sexual Recidivism Scale (ASRS), and the Violence Risk Scale: Sexual Offender version(VRS:SO). On the ASRS, she assesses Mr Daniel to be in the "medium-high risk"category. Under the VRS:SO, Mr Daniel is assessed as belonging to the "high risk"category.[32] Ms Vertue concludes:It is considered that there is a high risk that Mr Daniel will engage in relevant re-offending within 10 years of release. Given the high level of monitoring, supervision and support he has received in the past number of years, his risk of re-offending is likely to increase to Very High should thoseregulatory mechanisms be suddenly withdrawn, which has obvious implications for the first few years after his release from prison.Mr Daniel's risk of relevant sexual re-offending has been assessed as High. In addition, he meets all of the criteria from s 107IAA for sexual offending. He has sexually offended against females from a range of age groups, both known to him and unknown; he has re-offended despite sanctions such as imprisonment; his capacity to empathise with his victims is limited; his self- management of a chronic mental illness is poor; and his internal control mechanisms are rudimentary. As a result, it is suggested that his behaviour requires external controls in order to reduce his risk of sexually re-offending.[33] Ultimately, the Court must be satisfied that Mr Daniel poses a "high risk" ofcommitting further serious sexual offending after his release. The threshold is high, but on the evidence before me, I consider it is clearly met in this case.Conclusion[34] Given the evidence and the conclusions reached in this judgment, it is open to this Court to impose an ESO in respect of Mr Daniel. The purpose of the order is for protection of the community, and is not punitive in nature. I regard it as a guard which has a real benefit to Mr Daniel in helping him not to reoffend.[35] I have considered the term of the order in light of the risk and seriousness of harm which Mr Daniel currently poses, and is likely to continue to present.7I conclude that Mr Daniel poses a real and ongoing risk to the community, and is likely to do so for a significant period of time. It cannot be calculated with precision but it is Ms Vertue's opinion that Mr Daniel is at high risk of sexual reoffendingwithin ten years of release. I consider that an ESO for ten years is the appropriate term. It is open to the Court to cancel an order during its operation, should it become apparent that Mr Daniel no longer poses the requisite high risk.8 This possibility of review is a real factor in the balance struck between the protection of the public, which comes first, and the liberty of the individual.[36] I make a further observation.7 Section 107I(5).8 Section 107(N).[37] The Chief Executive did not seek an order for intensive monitoring to accompany the ESO in this case. Counsel Ms Currie has advised the Court that the panel which makes recommendations with regard to such applications did consider intensive monitoring, but Mr Daniel's circumstances are not thought to meet the highthreshold for such a condition to be imposed. It is helpful to the court to know that the New Zealand Parole Board will impose restrictive conditions on ESOs where warranted, as part of a robust release plan, so the risk identified may be appropriately managed.[38] Special conditions may include residential restrictions, including 24/7 monitoring for the first 12 months, GPS monitoring under "whereabouts conditions",and a reintegration programme with an identified agency for wrap-around support, including person-to-person. Probation staff, in consultation with the High Risk Response Team, prepare extensive ESO special conditions to be put before the Parole Board.[39] It is clear from this information, for which the Court is grateful, that each case is approached individually and with considerable attention to the particular risks and needs posed by someone who is, or may be, subject to an ESO. This is important to the understanding of the restrictions that may be imposed after a term of imprisonment.The Order[40] The Court grants the order sought. The respondent is to be subject to an ESO, which is to come into force on 8 October 2017, for a period of ten years..Nicholas Davidson JSolicitors:Raymond Donnelly & Co, ChristchurchM Starling, Christchurch