SHORTCLIFFE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZCA 597 [13 December 2016]

SHORTCLIFFE V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZCA 597 [13 December 2016]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 ZEALANDCA241/2016[2016] NZCA 597BETWEEN ZEBULAN JOSEPH SHORTCLIFFEAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 7 November 2016Court: Asher, Woodhouse and Ellis JJCounsel: J F OʼHalloran and G H Vear for AppellantC A Brook for RespondentJudgment: 13 December 2016 at 11.00 amJUDGMENT OF THE COURTA The appeal is allowed.B The extended supervision order made by the District Court on 9 May 2016 is set aside.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] In December 2005 Mr Shortcliffe was sentenced to 10 years' imprisonmentfollowing his conviction for four sexual offences:1(a) sexual violation by rape;(b) assault with intent to commit sexual violation;(c) attempt to commit sexual violation; and(d) indecent assault.[2] All offences related to the events of a single day in March of that year. There were two victims. We set out the facts of the offending in more detail later in this judgment.[3] Although Mr Shortcliffe had a criminal history entailing approximately 50 convictions for offending between 1996 (when he was 17) and 2004, none of these convictions were for sexual offending. Most were for low level property and dishonesty offences, together with driving and breach of supervision or release conditions. But he also had:(a) two convictions for common assault;(b) one conviction for assault with a blunt instrument; and(c) two convictions for injuring with intent to injure.[4] Mr Shortcliffe served the whole of his 10 year sentence for the 2005 sexual offending. He was released on 16 March 2015 and was subject to standard and special release conditions for six months.[5] Prior to the expiry of these conditions, however, the respondent applied for a three year extended supervision order (ESO). That application was granted by Judge Mather on 9 May 2016 on the basis that he was satisfied that:21 R v Shortcliffe DC Manukau CRI-2005-092-3239, 23 December 2005.2 Chief Executive of the Department of Corrections v Shortcliffe [2016] NZDC 6034.(a) Mr Shortcliffe had a pervasive pattern of serious violent offending;(b) there was a high risk that he would in future commit a relevant sexual offence; and(c) there was a very high risk that he would in future commit a relevant violent offence.[6] Mr Shortcliffe now appeals against that decision. But before turning to consider the merits of his appeal it is necessary first to say something about the ESO regime which is contained in the Parole Act 2002 (the Act) and then to set out the circumstances of Mr Shortcliffe's past offending in a little more detail.ESOs: the statutory context[7] The Act states that the purpose of an ESO is:3 to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences.[8] An ESO may be imposed on "eligible offenders" — specifically, those who have been sentenced to a finite prison term for a "relevant offence",4 which is defined as including sexual violation, attempted sexual violation, assault with intent to commit sexual violation and indecent assault.5[9] Any application for an ESO is to be made by the Chief Executive of the Department of Corrections.6 An application must be made at any time before the expiry date of the sentence to which the offender is subject, or the date on which the offender ceases to be subject to any release conditions, whichever is the later.73 Parole Act 2002, s 107I(1).4 Section 107C(1).5 Section 107B(2)(a), (b), (c) and (l).6 Section 107F.7 Section 107F(1)(a).[10] An ESO application must be accompanied by a report prepared by a health assessor.8 The report must address one or both of the statutory prerequisites for the making of an ESO, namely:9(a) whether—(i) the offender displays each of the traits and behavioural characteristics specified in section 107IAA(1); and(ii) there is a high risk that the offender will in future commit a relevant sexual offence:(b) whether—(i) the offender displays each of the behavioural characteristics specified in section 107IAA(2); and(ii) there is a very high risk that the offender will in future commit a relevant violent offence.[11] The term "serious sexual or violent offending" is not defined in the Act. Butin terms of the threshold risks, s 107IAA(1) provides that the court may determinethat there is a "high risk" that an offender will commit a relevant sexual offence onlyif 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] And s 107IAA(2) provides that the court may determine that there is a "veryhigh risk" that an eligible offender will commit a relevant violent offence only if it issatisfied that the offender:8 Section 107F(2).9 Section 107F(2A). The health assessor may also take into account any statement of the offenderor any other person concerning any conduct of the offender, whether or not that conductconstitutes an offence, and whether or not the offender has been charged with, or convicted of,an offence in respect of that conduct: s 107F(3).(a) has a severe disturbance in behavioural functioning established by evidence of each of the following characteristics:(i) intense drive, desires, or urges to commit acts of violence; and(ii) extreme aggressive volatility; and(iii) persistent harbouring of vengeful intentions towards 1 or more other persons; and(b) either—(i) displays behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.[13] It may usefully be observed at this point that the cascading sequence of mandatory prerequisites contained in s 107IAA no doubt reflects the fact that the imposition of an ESO constitutes a very serious intrusion into the liberty of its subject. Subject only to the exceptions contained in s 107IAA(1)(d) and (2)(b) the prerequisites are not expressed in the alternative; a Court must be satisfied that each of the specified indicators of risk are present before concluding that the relevant risk exists.[14] The term of any ESO must reflect the minimum period of supervision required for the purposes of the safety of the community in light of the risk posed by the offender, the seriousness of potential harm to victims, and the likely duration of the risk.10 ESOs may not exceed 10 years.11 Orders are made subject to the standard conditions set out in s 107JA, as well as any further special conditions later imposed by the Parole Board.1210 Section 107I(5).11 Section 107I(4).12 Section 107K.Mr Shortcliffe's sexual offending13[15] On 4 March 2005 the first victim, A, was at her home in Manurewa. The second victim, B, was visiting her. Mr Shortcliffe was at a neighbouring property.He introduced himself and struck up a conversation. At A's invitation he went to her house for a cup of coffee and to play cards. During the card game Mr Shortcliffetried to place his hand on A's lap. She discouraged him.[16] B and another person left the house, leaving Mr Shortcliffe and A alone. He drew the curtains, then attempted to force her to have oral sex, and attempted to rape her. She ultimately broke free and left.[17] Mr Shortcliffe then contacted B. He invited her out for a drink with him and a friend. He bought some drinks and took her to a secluded place, where they drank them. Mr Shortcliffe unzipped his trousers and exposed himself to B. He then took B and the friend to his house. The friend left. B had left some of her possessions inthe friend's car and so stayed with Mr Shortcliffe, waiting for the friend to return. Mr Shortcliffe took B to the garage, where he raped her and attempted to have anal intercourse with her.Mr Shortcliffe's earlier violent offending[18] None of the violent offences committed by Mr Shortcliffe between 1998 and2004 are "relevant violent offences" for the purposes of the ESO regime.14[19] Mr Shortcliffe's two convictions for common assault were entered on23 February 1999. He received a sentence of two months' periodic detention. Hisconviction for assault with a blunt instrument was on 3 February 2000. His sentence was nine months' imprisonment and nine months' supervision. His first conviction for injures with intent to injure was on 2 November 2000 and his second on 25 November 2004. He received sentences of nine months and nine months sevendays' imprisonment respectively. On the first conviction he was also sentenced to one year's supervision.13 The facts are outlined in the sentencing Judge's notes: R v Shortcliffe, above n 1, at [5]–[9].14 Parole Act, s 107B(2A).[20] Beyond that broad outline, however, all is silent. Neither the District Court nor this Court had before it any information about the facts or circumstances of this offending. Although a request for that information was apparently made by the report writer, Mr Stenhouse, none was forthcoming.The decision under appeal[21] The Chief Executive's application in relation to Mr Shortcliffe was for anESO of three years' duration. It was made on the grounds that:15(a) Mr Shortcliffe has, or has had, a pervasive pattern of serious sexual offending;(b) there is a high risk that he will, in future, commit a relevant sexual offence; and(c) there is a very high risk that he will, in future, commit a relevant violent offence.[22] Mr Stenhouse, who is a psychologist, prepared the relevant health assessor'sreport.[23] In his decision granting the application, Judge Mather recorded that Mr Stenhouse noted Mr Shortcliffe's offending history and Mr Stenhouse'sassessment of his reoffending risk based on the standard static and dynamic tools.16He noted Mr Stenhouse's view that his offending had become frequent and regular and escalated over time which (Mr Stenhouse said) was indicative of high risk of future recidivism.17[24] The Judge also noted that Mr Stenhouse said that:15 There is no dispute that Mr Shortcliffe's sexual offending rendered him an "eligible offender"under s 107C.16 Chief Executive of the Department of Corrections v Shortcliffe, above n 2, at [15] and [17].17 At [14].(a) Mr Shortcliffe has never accepted responsibility for the offending for which he was sentenced in December 2005 and "vehemently denies any wrongdoing";(b) the index sexual offending was opportunistic, rather than reflecting long term planning or explicit sexual fantasy or anger; and(c) for most of his time in prison Mr Shortcliffe had declined the opportunity to engage in intensive group-based treatment. But towards the end of his sentence he had agreed to a lengthy psychological assessment. The resulting report is said to have noted that Mr Shortcliffe had said that he wished harm to one of the victims of his index offending and that he was prepared to return to prison as a violent offender.[25] After referring in more detail to aspects of both Mr Stenhouse's written reportand his oral evidence, Judge Mather noted that Mr Stenhouse did not describe Mr Shortcliffe's sexual offending as constituting a "pervasive pattern".18 The Judge said that none of the cases to which he had been referred suggested that a qualifying pattern could be found in offending that had occurred over a single day. He therefore agreed with Mr Stenhouse's conclusion on that issue.19[26] Notwithstanding that the application had not been advanced on this basis, the Judge went on to find that a pervasive pattern of serious violent offending existed.20That finding was based on his view that Mr Shortcliffe had a history of convictions for violent offending over a period of nine years, and that the index sexual offending also constituted serious violent offending. The Judge found that although none ofthe historic violent offences were "relevant" offences in terms of s 107B(2A), there is no requirement for them to be so in order to qualify as serious violent offending or to constitute a pattern for the purposes of s 107I(2)(a).[27] Having crossed that threshold, the Judge then turned his mind to the issue of risk, as required by ss 107I(2)(b) and 107IAA(1).18 At [53].19 At [56].20 At [59].[28] Notwithstanding his earlier conclusion that Mr Shortcliffe had not exhibited a pervasive pattern of serious sexual offending, the Judge went on to find that there was a high risk of Mr Shortcliffe committing a relevant sexual offence in future.21Influential in this conclusion was his view that:(a) the index offending reflected anti-social beliefs, particularly of a sexualised and hostile nature towards women;(b) Mr Shortcliffe demonstrated poor impulse control;(c) he had a strong pattern of impulsivity;(d) he had breached his release conditions (he had been found unlawfully in possession of a firearm); and(e) as regards his 2005 convictions Mr Shortcliffe did not consider he had offended against either victim.[29] The Judge was also satisfied that there was a very high risk that Mr Shortcliffe would in future commit a relevant violent offence.22 This was because of the anger he had reportedly expressed towards one of his victims prior to release; his aggressive volatility; his emotional dysregulation; his recent unlawful possession of a firearm; and his minimising and denial of past violence and attribution of responsibility to the victims.The appeal[30] Mr Shortcliffe appeals against the making of the ESO on the basis that the Judge erred:(a) in finding that there was a pervasive pattern of serious violent offending;21 The Judge said that he was entitled to find such a risk, notwithstanding the finding that there was not a pervasive pattern of sexual offending: at [66].22 At [70].(b) in considering the risk of sexual offending at all, and then finding a high risk that Mr Shortcliffe would in future commit a relevant sexual offence; and(c) in finding there was a very high risk Mr Shortcliffe would in the future commit a relevant violent offence.[31] Although the Crown submitted on appeal that the Judge would also have been justified in finding a pervasive pattern of serious sexual offending we do not intend to address that submission directly in this judgment. We agree with Judge Mather that a sequence of related events occurring in the course of a single day cannot constitute a pervasive pattern.23[32] For reasons that will become apparent we have found it necessary to consideronly Mr Shortcliffe's first ground of appeal, which we do below.A pervasive pattern of serious violent offending?[33] Ms O'Halloran's first submission under this ground was that the term "serious sexual or violent offending" (which is not defined in the Act) should beinterpreted by reference either to:(a) the definition of "relevant offence" in s 107B; or(b) the definition of "serious violent offence" in s 86A of the Sentencing Act 2002 (as part of the "three strikes" regime of additionalconsequences for repeated serious violent offending).[34] If that submission were correct then there could not be the requisite pervasivepattern in Mr Shortcliffe's case because only his sexual offending falls within eitherof these definitions.[35] The difficulty faced by Mr Shortcliffe, however, is that these contentions run headlong into the recent decision of this Court in Holland v Chief Executive of the23 Parliament's use of the word "pervasive" is important.Department of Corrections.24 In that case, Mr Holland had contended that an ESO had been wrongly imposed on the ground (inter alia) that the District Court Judge had wrongly concluded that Mr Holland had a pervasive pattern of serious sexual offending. Part of that submission was that the only offences that could constitute"serious sexual offending" were those "relevant" sexual offences identified ins 107B(2). Accordingly, it was said that a conviction for an offence under the Films, Videos, and Publications Classification Act 1993 could not be taken into account as part of the necessary pattern.25[36] The Court rejected that submission. In doing so, it relevantly noted that:26(a) had Parliament intended to limit the type of sexual (or violent) offending that could be taken into account for the purposes of the"pervasive pattern" threshold, it would have been a simple matter tohave used the word "relevant" (which is used as a descriptor elsewhere in pt 1A of the Act) instead of the word "serious". The factthat a different word was chosen implies that the matters to be considered would not be limited to offences that were specified as relevant under s 107B(2); and(b) when preparing his or her report under s 107F, a health assessor is expressly permitted to take into account unproven allegations and past conduct that does not actually constitute an offence.27 It would be illogical to permit such conduct that did not constitute a relevant sexual offence within the meaning of s 107B(2) to be taken into account for the purposes of determining whether there was a risk of committing such an offence in the future if the same conduct was excluded for the purposes of considering the offender's pattern of pastoffending.[37] The Court concluded:24 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504.25 At [39]. The offence in question was a "relevant" offence specified in s 107B(3), but not a specified "relevant sexual offence".26 At [40]–[43].27 Section 107F(3).[44] We consider that the phrase "serious sexual offending" falls to beinterpreted by reference to its ordinary meaning viewed against the purpose of this part of the Parole Act. In ordinary language "serious" means "important, grave; having (potentially) important, esp. undesired,consequences; giving cause for concern; of significant degree or amount,worthy of consideration".[45] The imposition of an ESO is, of course, a significant step thatrestricts an offender's freedom of movement and association for up to 10years after he or she has served the sentence imposed for the subject offence. These consequences are regarded as justified to protect the public from future risk. Self-evidently, only offending at the higher end of the range would justify such a step. Parliament could not be taken to have contemplated that a pattern of offending at the lower end of the spectrum would justify consideration of such a potentially draconian constraint. It is, however, an assessment for the judge on the facts of the particular case.(Footnote omitted)[38] While the discussion in Holland focused on the meaning of "serious sexual offending", we consider the reasoning applies equally to the interpretation of"serious violent offending". We therefore respectfully endorse and adopt the Court's conclusion; whether or not offending is "serious" in a qualifying way requires a factspecific inquiry on a case by case basis.[39] But Ms O'Halloran's second submission was on stronger ground. She said that even if the Court adopts a more fluid, case by case, approach, the Court must be in a position to inquire into the circumstances of the offending in question. Determining whether offending involving violence will qualify as "serious" mustinvolve consideration of the particular facts of the offending. As the Court inHolland noted, the very use of the word "serious" means that not all violentoffending will qualify and specific analysis is required.28[40] In our view the difficulty for the Chief Executive is that there was no information at all before the Court about the facts of Mr Shortcliffe's historic violentoffending. A request for that information was apparently made by Mr Stenhouse but the information was not forthcoming. The only information that the Court had to go on was the charges themselves and the sentences imposed.28 At [45].[41] As far as the specific charges are concerned, they undoubtedly fall at the lower end of the violent offending spectrum.29 As far as the sentences are concerned, the longest was nine months and seven days' imprisonment for injuring with intent toinjure in 2004. And as Ms O'Halloran said, it is dangerous to draw conclusionssimply based on the length of the end sentence; there are likely to have been other factors in play, quite unrelated to the seriousness of the violence involved. By way of example only, Mr Shortcliffe's extensive (but non-violent) criminal history might well have influenced that sentencing outcome, as might the obvious difficulty he had with compliance.[42] Nor are we able to accept the Chief Executive's alternative submission thatthe index sexual offending alone could constitute the necessary pattern of seriousviolent offending. Judge Mather's conclusion (with which we have already agreed) that four similar offences committed during a single day cannot constitute a pervasive pattern applies equally to dispose of that contention.[43] In our view, therefore, the Judge's conclusion that there was a pervasivepattern of serious violent offending cannot be justified. There is no basis upon whichit can properly be found that Mr Shortcliffe's historic violent offending wassufficiently serious. We have already indicated our agreement with the learned District Court Judge that Mr Shortcliffe's history did not justify a finding that therewas a pervasive pattern of serious sexual offending. Accordingly, neither of the s 107I(2)(a) thresholds is met.[44] Our conclusion that there was no qualifying pervasive pattern of either serious sexual or violent offending here suffices to dispose of the appeal in Mr Shortcliffe's favour. If the threshold is not met then there is no basis upon whichthe question of risk can be considered. There is, accordingly, no need to consider the other grounds of appeal.29 The most serious of the violent offences for which Mr Shortcliffe has been convicted, injuringwith intent to injure and assault with a blunt instrument, carry maximum penalties of five years'imprisonment: Crimes Act 1961, ss 189(2) and 202C(1)(a).Result[45] The appeal is allowed accordingly.[46] The extended supervision order made by the District Court on 9 May 2016 is set aside.Solicitors:Crown Law Office, Wellington for Respondent