The Queen v Poutawa [2007] NZCA 206 (24 May 2007)

Last Updated: 16 June 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA414/06
[2007] NZCA 206

MICHAEL FRANCIS POUTAWA



v



THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Hearing: 8 March 2007

Court: Chambers, Gendall and Heath JJ

Counsel: J S Jefferson for Appellant
S B Edwards for Respondent

Judgment: 24 May 2007     at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Extended supervision order

[1]	In 1997 Michael Poutawa was convicted of seven sexual offences, including two counts of rape and one of sexual violation by rape. These charges arose out of four incidents, which occurred between 1979 and 1995.
[2]	Laurenson J imposed a term of 11 years’ imprisonment. Mr Poutawa was released from prison on 15 October 2003. But he breached his parole conditions, and was recalled to prison in November 2005. Subsequently he was released from prison again.
[3]	In February last year, the Chief Executive of the Department of Corrections applied for an extended supervision order against Mr Poutawa pursuant to s 107F of the Parole Act 2002. Venning J heard and determined that application: Chief Executive of the Department of Corrections v Poutawa HC NAP CRI 2006-441-000007 17 October 2006. He held that an extended supervision order (ESO) should be made. He said it should be in place for seven years.
[4]	Mr Poutawa has appealed against Venning J’s decision. He does not dispute his was a proper case for an ESO, but he says its term should have been no more than five years.
[5]	The sole issue on this appeal is whether the High Court was wrong in fixing a seven year term.

Was the High Court wrong in fixing a seven year term?

[6]	Two psychologists gave evidence before Venning J and addressed the matters set out in the Parole Act, s 107F(2). Niall Morrison, called by Corrections, expressed the opinion that any ESO should subsist for ten years. (That is the maximum term available:, s 107I(4).) Victor Soeterik, called on behalf of Mr Poutawa, considered the term should be five years.
[7]	The judge dealt with the length of the order at [23]-[38] of his reasons for judgment. Overall, the judge tilted slightly in favour of Mr Soeterik’s assessment of the situation. In particular, the judge accepted Mr Soeterik’s assessment that Mr Poutawa was "in the low or moderate to medium risk category rather than the high risk category...suggested by Mr Morrison": at [36]. At the same time, the judge noted Mr Soeterik’s acknowledgement that his "five years [was] somewhat arbitrary": at [37]. The judge also noted his continuing concern that Mr Poutawa, during his term of imprisonment, had not faced up to his offending and sought treatment.
[8]	The judge concluded at [38]:

On balance, having regard to all of the information before the court and bearing in mind I am directed to impose the minimum period required for the purposes of safety of the community, I fix the ESO in this case at a period of seven years.

[9]	Mr Jefferson, for Mr Poutawa, submitted the judge was wrong not to have adopted Mr Soeterik’s five year term. He submitted that the judge had preferred Mr Soeterik’s assessment of risk over Mr Morrison’s, but had then not adopted Mr Soeterik’s recommended term. He submitted "the seven year term imposed exceeds the minimum period required and assumes an excessively punitive effect in this case".
[10]	Assessing the appropriate length of an ESO involves the exercise of a broad discretion. It will rarely be possible to challenge the assessment of the first instance judge. What this court said in B v Police (No 2) [2000] 1 NZLR 31 at [6] with respect to bail appeals applies equally to appeals against the length of an ESO order:

Before moving to the case before us, we venture some general observations. Someone who appeals a refusal of bail and is unable to point to a material change in circumstances since the lower Court’s decision faces the difficulty that it is a challenge to the exercise by a Judge of a discretion. The appellant must therefore establish that the refusal of bail was contrary to principle, or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong. (Where there has been a change in circumstances the better course is for a further application to be made to the lower Court rather than the pursuit of an appeal.)

[11]	Mr Jefferson had not really prepared his appeal on that basis; he had formulated his submissions on an assumption that we would approach the matter afresh. That is not the case. In the end, he was compelled to submit that Venning J’s decision was "plainly wrong". He based that submission on the fact that the length of order imposed was plainly inconsistent with the assessment of risk as found by the judge.
[12]	We have reconsidered Venning J’s decision in light of the standard test for appeals against discretion. We do not consider it was contrary to principle: the judge carefully directed himself in terms of the factors set out in the legislation. He clearly considered all relevant matters, including of course the very important issue of the assessment of risk: see ss 107F(2) and 107I(1) and (5). Mr Jefferson did not come near to establishing "the decision was plainly wrong". Indeed, there is no dispute about the need for an ESO. The difference we are talking about is merely as to the length of the ESO – Mr Soeterik’s five years, which he conceded was "somewhat arbitrary", and the judge’s seven years.
[13]	It does not follow from the judge’s preference for Mr Soeterik’s assessment of risk (applying the Static and SONAR tests) to Mr Morrison’s, that the judge was bound to adopt Mr Soeterik’s suggested length of order. The judge was entitled to be concerned about Mr Poutawa’s failure to face up to his offending and seek treatment during his first term of imprisonment: see s 107F(2)(d). The judge was also entitled to take into account, as he did, the overall purpose of an ESO, namely the safety of the community in light of, not only the level of risk imposed by the offender, but also the seriousness of the harm that might be caused to victims: see s 107I(5).
[14]	The desirability of light-handed appellate control over the length of ESOs is reinforced by the following consideration. An offender subject to an ESO is able at any time to seek either cancellation of the ESO or variation of the conditions of the ESO, if the situation changes: see ss 107M and 107O. This was a point rightly stressed by Ms Edwards, for Corrections. For instance, in the present case, if, after four years, Mr Poutawa has complied with the terms of his ESO and has not committed any relevant offences, he may well be a prime candidate for either the cancellation of the ESO or for the relaxation of its conditions. Everyone will be in a much better position to assess future risk at that stage than we are now. So, just as bail circumstances can be revisited as circumstances change, so too can the need for an ESO be reconsidered in light of the offender’s progress under it. That will generally be a much more suitable course for offenders to follow rather than attempting to appeal against the length of the order at the start of the period. Of course, there will be some cases where appeal is the right course: Chief Executive of the Department of Corrections v H (CA359/05) 1 May 2006 is an example of a first instance decision which was plainly wrong (ten year term cut to five).
[15]	Finally, we record that we have considered Mr Poutawa’s appeal in light of R v Peta [2007] NZCA 28, a decision of this court delivered after Venning J’s decision. Although of course Venning J did not have the advantage of this court's view as to best practice for risk assessment, counsel were agreed that the psychologists’ approaches and Venning J’s analysis were broadly in line with this court’s suggestions in Peta. We agree with counsel’s assessment.

Conclusion

[16]	Mr Poutawa has not satisfied us that the judge’s assessment as to length of the ESO was plainly wrong. In these circumstances, we dismiss the appeal.

Solicitors:
Crown Law Office, Wellington, for Respondent