W (CA716/2018) v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 460

W (CA716/2018) v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 460 [27September 2019]NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFNAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFTHE APPELLANT UNDER S 200 OF THE CRIMINAL PROCEDURE ACT2011 REMAINS IN FORCE.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA716/2018[2019] NZCA 460BETWEEN W (CA716/2018)AppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 15 July 2019Court: Collins, Simon France and Lang JJCounsel: S Brickell for AppellantA J Ewing for RespondentJudgment: 27 September 2019 at 10.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] An extended supervision order (ESO) lasting for eight years was made inrelation to W.1 W appeals both the imposition of the order and its length.Legislation[2] Under the Parole Act 2002 (the Act), there are various pre-requisites beforean ESO may be made. First, the offender must be eligible by reason of havingcommitted one or more offences that are identified in s 107B of the Act. In 2016 Wwas convicted of three charges of doing an indecent act on a girl.2 It is common groundhe is therefore an eligible offender.3[3] The next pre-requisite is that the Court must be satisfied the offender has apervasive pattern of serious sexual or violent offending.4 W has been convicted of anumber of offences over the years. Issues that arose before Judge Henwood, andwhich are repeated on appeal, include whether some of his offending can be classifiedas sexual offending; if so, is it serious sexual offending; and finally does such serioussexual offending as has occurred reflect a pervasive pattern?[4] To clarify the first of these issues, the question arises whether an offence ofentering with intent can be a sexual offence if the motivation for entry was a sexualpurpose. In relation to the second issue of "serious" sexual offending, it has been heldthat the term is to be given its ordinary meaning.5 Serious has been held by this Courtto mean:6important, grave; having (potentially) important, esp. undesired,consequences; giving cause for concern; of significant degree or amount,worthy of consideration.1 Chief Executive of the Department of Corrections v [W] [2018] NZDC 20296.2 Crimes Act 1961, s 132(3).3 Section 107C.4 Parole Act, s 107I(2)(a).5 Holland v Chief Executive of the Department of Corrections [2017] NZSC 161, [2018] 1 NZLR771 at [13].6 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [44], quotingfrom The New Shorter Oxford English Dictionary (4th ed, Clarendon Press, Oxford, 1993) at 2785.[5] If the Court is satisfied that a pervasive pattern of serious sexual offendingexists, the next pre-requisite is that an ESO may not be made unless the Court issatisfied there is a high risk that the offender will in future commit a relevant sexualoffence.7 Section 107IAA(1) of the Act identifies various features that must be presentbefore a Court can determine there is a high risk of future sexual offending:(1) A court may determine that there is a high risk that an eligible offenderwill commit a relevant sexual offence only if it is satisfied thatthe offender—(a) displays an intense drive, desire, or urge to commit a relevantsexual 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 forpast offending:(ii) an absence of understanding for or concern aboutthe impact of his or her sexual offending on actual orpotential victims.[6] On appeal the first two aspects are put in issue, it being disputed whetherthe evidence established that W had the necessary intense urge, or that he had apredilection or proclivity for serious sexual offending.[7] If a Court determines that an ESO should be made, the maximum permissibleperiod is 10 years.8 The length imposed is to be the minimum period required forthe safety of the community in light of the risks posed and the seriousness of the harmthat might be caused to victims of future offending.9 W contends the evidencesupported a lesser minimum period than the eight years imposed.7 Parole Act, s 107I(2)(b)(i).8 Section 107I(4).9 Section 107I(5).W's relevant offending[8] W is 50 years old. He has amassed 68 convictions for a range of offences.Five offences are clearly sexual offences within the ordinary meaning of the term.10The Chief Executive of the Department of Corrections contends further burglary typeoffences should be included within the meaning of sexual offending.[9] W's offending sequence starts in 1986, when he was 18 years old. He wasliving on the street. W had unlawful sexual intercourse with a girl aged 13 years.He was sentenced to supervision and non-residential periodic detention.[10] In 1988 W committed the offence of entering with intent. W saw a woman ona beach and followed her home. The woman was showering when W enteredthe bathroom. A confrontation ensued, during which W armed himself with a knife,asked her for money and then a kiss before leaving. During the course of interviewsin relation to the present ESO application, W accepted he had a sexual motivation atthe time.[11] The next relevant event is five years on, in 1993. It is again an offence ofentering with intent, but also one of indecent assault. The record of what occurred isfar from complete. However, a contemporaneous psychological assessment describesthe indecent assault as being committed against a woman in her late seventies. W wassentenced to 18 months' imprisonment, a term that is consistent with the assault beingon an elderly woman in a home invasion context.[12] Shortly after his release from prison in the second half of 1994, W committedanother burglary. Similar to past offending, he was located outside the shower area ofa home where an elderly woman was showering. He was sentenced to a furthernine months' imprisonment. W's acknowledgement that the 1988 offending hada sexual motivation extended also to this 1994 incident. Issue is taken with boththe 1988 and 1994 offending being classified as sexual offending.10 Four convictions for indecent assault, and one for sexual intercourse with a 13-year-old girl.[13] W maintained a steady pattern of offending subsequent to this, but none whichcould be termed sexual offending until 2009. During the intervening period there werethree short imprisonment sentences and numerous sentences of periodic detention andcommunity work.[14] In 2016 W was convicted of sexual offending against his two daughters.The offending had occurred several years earlier when the girls were aged six andseven. As regards the younger one, the offending consisted of lying on her andsimulating sexual intercourse. It involved rubbing his penis against her genital areaover the top of her pyjamas.[15] The offending against the seven-year-old was a little later in time but of similarconduct. There were two separate indecent assaults, separated only by the briefest ofrespites. In the first he pressed his penis against her stomach and genital area.He simulated sex until the girl was able to move herself away. He called her back, andthen rubbed his penis against her leg and bottom. Three convictions for doingan indecent act on a girl were entered. W was sentenced to a total of 19 months'imprisonment,11 and the ESO application was made towards the end of that sentence.Sexual offences?[16] In Holland v Chief Executive of the Department of Corrections the offenderhad convictions for offences against the Films, Videos, and Publications ClassificationAct 1993.12 These offences are included in s 107B(3) of the Parole Act and thereforemake an offender eligible for an ESO. It was argued, however, that they werenevertheless not sexual offences for the purposes of establishing a pattern of sexualoffending. The Supreme Court rejected the argument, noting that it would beinconsistent for an offence to be one that triggers eligibility but not be able tobe considered at the next stage.13 Whether the particular incident amounts toa sexual offence depends on the circumstances of the offending. In Holland,11 R v [W] [2016] NZDC 8147.12 Holland v Chief Executive of Department of Corrections, above n 5.13 At [13].the offending primarily involved possession of images of young girls, some of whichMr Holland may have photographed himself. They were held to be sexual offences.14[17] We consider a burglary type offence, whatever specific charge is used, can bea sexual offence depending on the circumstances. To take an obvious example, ifthe breaking and entering is for the purposes of committing a rape, it would beuntenable to exclude that from consideration as not being a sexual offence.[18] Turning to the present, we accept the evidence that establishes the offending tohave a sexual motivation. On W's behalf it is submitted that caution is needed beforerelying on his self-reporting and incriminating statements, as there is a clear pattern ofinconsistency. The latter may be so but his acknowledged motivations in relation tothe burglary type offending are consistent with his pattern of offending. W on eachoccasion is outside the cubicle of a showering woman, and he has other convictionsfor assaulting women in such circumstances. The acknowledgement by him of hismotivations in many ways merely confirms an obvious inference. We agree withJudge Henwood that both the 1988 and 1994 offences of entering with intent aresexual offences.15A pattern of serious sexual offending?[19] We begin with a discussion of Wardle v Chief Executive of the Department ofCorrections.16 Mr Wardle's offending started in 1993 when he was aged 36, withindecent touching of two young girls before driving them home. Four years later therewere convictions for intercourse with a 14-year-old and assault of a 15-year-old withintent to commit sexual violation. There was then a 12-year gap before he wasconvicted of indecently assaulting a 16-year-old under her clothes while sitting ina car. Finally, three years later he indecently assaulted a 20-year-old woman travellingin his truck. Again, he touched her under her clothing.[20] Similar to the present case there were submissions that the indecent touchingincidents were not properly classed as serious sexual offending. This Court disagreed14 At [12]–[14].15 Chief Executive of the Department of Corrections v [W], above n 1, at [58].16 Wardle v Chief Executive of the Department of Corrections [2017] NZCA 298.both in terms of the individual assessment of some offending, but also as to howthe matter of a pattern was to be approached. The Court assessed the initial1993 offending involving young girls, a breach of trust and age disparity as serious inits own right.17 Other offending was accepted to be less serious, but the Court heldthat collectively the offending constituted the necessary pervasive pattern of serioussexual offending.18 The Court recognised that seriousness may be identified withthe benefit of hindsight, and in particular with an awareness of an offender'ssubsequent conduct.19[21] We adopt this approach which reflects an appropriate emphasis on the statutorytest of whether the conduct overall constitutes the necessary pattern of seriousoffending. As was noted in Wardle, the circumstances of an offence will influence itsgravity.20 For example, W's 1994 offending occurred shortly after his release fromprison for similar offending. That circumstance will always increase the seriousness,and be suggestive of an inability to regulate his conduct such as to raise serious publicsafety concerns.[22] Standing alone, we accept that the 1994 offence of burglary is hard to view asserious for the simple reason that nothing thereafter happened. W it seems lingeredoutside the shower while an elderly woman showered. It is conduct that causesconcern, but in isolation could not be elevated beyond that. When, however, it is notedthat it has happened before and on other occasions assaults have followed,the seriousness increases. The spectre of repeated conduct, and the risk of furtheroffending if confrontation ensues, taken with W's own acknowledgment of a sexualmotivation to his presence outside the shower, elevates the assessment of seriousness.[23] Bearing in mind the ordinary meaning of serious, we consider a sequence offour separate incidents of sexual offending, spanning more than 20 years and eachhaving their concerning aspects, represents a pattern of serious sexual offending.The following points support this conclusion:17 At [40].18 At [41].19 At [43]–[45].20 At [42]–[43].(a) The time frame indicates a continuing persistence and risk.(b) The home invasion aspect, lacking in the last only becausethe offending occurred in his home, is a recognised significantaggravating factor.(c) The wide range of victims. The first and last offence involves younggirls, in the middle there is an adult woman, and that followed by twoelderly women.(d) The presence in the list of two offences of undoubted seriousness.Having full intercourse with a 13-year-old must always be seen asserious, notwithstanding W was only 18. It is the age of the victim thatelevates that offending. Then more than 20 years later there is serioussexual offending against even younger girls who are his daughters.That W is still offending against young girls 20 years later isparticularly concerning. The breach of trust involved in the lastoffences make them particularly serious.(e) The events of less immediate seriousness in terms of actual sexualconduct still have a home invasion overlay, and come withan acknowledgment that the unlawful entries were sexually motivated.Is the pattern pervasive?[24] The ordinary meaning of pervade is:21spread throughout, permeate.These are labels that seem apt to describe a record of on-going sexual offendingspanning for more than 20 years. W first committed a serious sexual offence whenaged 18; he then again sexually offended against young girls when he was in his earlyforties. In between he has offended intermittently against women. It is a pattern fairly21 Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (OxfordUniversity Press, Oxford, 2005) at 845.described as pervasive in the sense there have been continued occurrences throughouthis adult life.[25] We are therefore satisfied the District Court did not err in concluding there wasa pervasive pattern of serious sexual offending.A high risk of committing a relevant sexual offence?[26] The Court was assisted by reports from two health professionals, each of whomalso gave oral evidence and was cross-examined. Both assessed W as a high risk ofre-offending, but differed as to whether the specific statutory traits required bys 107IAA were present.[27] The first trait in issue is whether W displays "an intense drive, desire, or urgeto commit a relevant sexual offence".22 Ms Angela Nelms, a psychologist employedby the Department of Corrections, considered the requirement met. Mr Barry Kirker,a clinical psychologist in private practice, differed. Mr Kirker noted the lack ofinformation provided by W about his current motivation and considered anyconclusion under this heading could only be speculative. Further he did not considerthe pattern of offending was something reflective of someone with an intense drive tooffend.[28] On behalf of W, Mr Brickell acknowledges that there are difficulties withevaluating the statutory test if an offender does not co-operate. While the urge maybe to not allow that type of undermining of the process, the statutory requirement issubmitted to be clear. It must be satisfied or an order cannot be made. It is submittedthe offending record on its own does not disclose an intense drive or desire and thereis no alternative evidence to fill the evidential gap.[29] Ms Nelms had identified a stalking characteristic to some of the offending andsaw this as relevant to W's drive to offend. Whilst Mr Brickell challenges this,we consider it is a valid description for W's conduct from 1988 through 1994. Thatconduct is suggestive of an intensity of purpose that goes some way to meeting22 Parole Act, s 107IAA(1)(a).the statutory test. We accept though that this stalking aspect has not since manifesteditself.[30] The Chief Executive submits the past pattern of offending, when taken withthe other matters known about W, establishes the trait. That being so, there isno evidence to suggest the situation has changed. We agree with the latter point as Wdoes not display remorse, nor has he engaged with rehabilitative options.[31] The Chief Executive relies on matters known about W in addition to his actualoffences. In this regard we observe that s 107F(3) of the Act provides:To avoid doubt, in addressing any matter to be referred to in the healthassessor's report, the health assessor may take into account any statement ofthe offender or any other person concerning any conduct of the offender,whether or not that conduct constitutes an offence and whether or notthe offender has been charged with, or convicted of, an offence in respect ofthat conduct.[32] The capacity of the health professional to rely on this material in providingtheir reports necessarily means the Court may equally have regard to it. There wouldbe little point in the health assessor having regard to it if the Court could not.23[33] Concerning W, some relevant matters in addition to his offending emerge.W usually lives a vagrant lifestyle on the street, where he acknowledges he developsrapport with young people similarly situated. To Ms Nelms he estimated that at timeshe would have sex with street girls as much as three times a day, although thenqualifying this by saying they were all women in their twenties. Ms Nelms saw thislevel of activity as indicative of an intense sexual drive.[34] Next, a file note from an earlier incarceration notes W to have displayed asexual preoccupation which manifested in staring inappropriately at female prisonofficers, and commenting he found it hard not to. Further, an experienced psychologistnoted that W was amongst a small group of inmates over the years with whom he feltuncomfortable because of his underlying explosive anger. We acknowledge this is not23 Holland v Chief Executive of the Department of Corrections, above n 5, at [13].related to sexual matters, but it discloses an intensity in his personality not irrelevantto the statutory test.[35] Overall we accept this aspect of the test is the most contestable. The recorddiscloses a persistence in offending for over more than 20 years; but also periods wheresexual offending appears to abate. If his self-reporting is to be believed, however,during these periods his intense sexual drive was being met by women in vulnerablesituations. Whilst the periods of non-offending raise a valid query as to whetherthe statutory test is met, on balance we consider it is.[36] The other contested trait is the requirement that W has a "proclivity" for serioussexual offending.24 It is not easy to discern what this requirement adds to a conclusionalready reached that the offender displays a pervasive pattern of serious sexualoffending. One who has displayed that pattern will normally be regarded as havinga proclivity to such offending.[37] Mr Brickell focuses on the concepts of pattern and the need for evidence ofa particular focus to W's offending. He submits the diversity of W's offending tellsagainst any particular preference. We do not accept the section is to be read sonarrowly, considering that proclivity means, as it suggests, an observable tendency tocommit such offences. For all the reasons discussed previously, W displays thattendency and has done so for many years.[38] None of the challenges having been made out, we confirm the imposition of anESO.Length of term[39] W left home as a teenager with little formal education. He reports as beinga heavy alcohol and cannabis user by the age of 16. There have also been periods ofsolvent abuse. W has had continual engagement with mental health agencies and ison anti-psychotic medication. He has a poor record of compliance. He has mooddisorders and continues to use alcohol despite being aware of its impact on him.24 Parole Act, s 107IAA(1)(b).[40] Concerning his offending W shows little insight or remorse. He is describedas not having undertaken any treatment, and has not been willing to comply withconditions or treatment recommendations. He says he has no interest in psychologicaltreatment, nor in developing any safety plan.[41] Mr Kirker suggests W's offending can be understood in terms of the comingtogether of these causal factors:(a) poor interpersonal boundaries, and a lack of understanding ofappropriate behaviour in relation to children;(b) normalisation of sexual offending or disinhibited sexual behaviours andpro-sexual offending (distorted) beliefs;(c) lack of awareness about his own psychological state and sexualthoughts and desires;(d) difficulties, or reluctance, to regulate emotional state including feelingsof anxiety, depressed mood, anger and sexual urges;(e) lack of positive adult relationships;(f) substance abuse disinhibiting behaviour;(g) sense of entitlement in relation to obtaining sexual gratification;(h) impulsivity and disregard for consequences of behaviour;(i) impaired judgement due to low capacity for generation of a range ofbehaviour options or problem solving;(j) lack of empathy for others; and(k) ease of access to victims.[42] Against this background, the Chief Executive sought the maximum 10-yearterm, primarily relying upon the actuarial models which suggest the risk factors willpersist for at least that period. Mr Kirker considered something much less wasappropriate as there are identifiable therapeutic needs which, if met, could reducethe risks W poses.[43] Judge Henwood was reluctant to base the length of the ESO on the premisethat W would undertake any rehabilitative steps.25 She considered them unlikely tooccur. However, her Honour noted that by the time of the making of the ESO, W hadbeen out of jail for a considerable period and had seemingly complied with conditions.This led to a reduction in the term of the ESO from the maximum to one of eight yearsto reflect this period of compliance.[44] We agree that as matters stand there is little to support reducing the length ofthe ESO from the maximum of 10 years. The various actuarial models indicate thatthe risk will continue for 10 years albeit with a reduction over time. W showsno inclination to take steps to hasten that reduction. He has been itinerant sincethe early 2000s and that is his preferred lifestyle. It is a lifestyle that puts him incontact with a number of vulnerable persons who are potential victims.[45] Further, W has on-going addiction issues, and refuses to address them.He accepts alcohol and solvent abuse have been key factors in his offending, andthe likelihood of at least on-going alcohol and drug use suggests the risks he poseswill not diminish.[46] We consider a case existed for the maximum term and so dismiss the appealagainst a duration of eight years.Result[47] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent25 Chief Executive of the Department of Corrections v [W], above n 1, at [67].